CONSTITUTIONAL LAW
Kwin
July 4, 2011
REVIEW ON INEHERENT POWERS OF THE STATE
Before we go to bill of rights, let’s review the inherent powers
of the state that regulate the rights of individuals, which
rights put limitations on the powers of the state. There has
to be balance between authority on one hand and rights of
the individuals on the other hand.
The authority we are referring here are:
1. police power
2. eminent domain power
3. taxation power
You should understand the limitations and the nature of the
exercise of the power as to whom the power may be
delegated.
1. POLICE POWER
Basically this is the law making power of the state. We have
the power of the congress to pass laws in order ot promote
the general welfare.
The general welfare could be:
1. Public safety
2. Public welfare
3. Public policy
3. Public morals
4. Public convenience
5. Everything pertaining to the protection of public interest
REQUISITES IN THE EXERCISE OF THE POWER
1. subject matter must be lawful
2. the means in achieving the purpose of the law must be
valid
-PURPOSE refers top the protection and promotion of
general welfare.
Because the supreme law is the welfare of the epeople
which is the basis for the exercise of police power.
-if the means of achieving the purpose of the law is
unreasonable, and oppressive, there may still be violation
of law and a question on the validity of the exercise of the
power.
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WHOM POWER IS DELEGATED
The power is primarily vested in congress. For as long as
congress exercises the power of congress, it is virtually a
plenary power of congress subject only to such substantive
and procedural limitations as provided by the constitution.
PERMISSIBLE DELEGATION OF THE POWER
Although you take note of the permissible delegation of the
power.
1. president
- in the exercise or emergency powers
2. administrative bodies
-subordinate legislation
3. LGU’s
-under the welfare clause
-however taking into consideration the limitation in the
exercise of the power by LGU’s excluding MMDA
4. people
-through the process of initiative and referendum
NO COMPENSATION
Is there any compensation if this power is used by the
government top limit the exercise of your rights?
NO. It is more on the promotion of general welfare and the
destruction of property out of necessity.
And if there is taking of property for the general welfare
using police power, then there is no monetary consideration
there.
The only compensation is the promotion of general
welfare.
COMPNESATION: POLICE POWER VS EXPROPRITAION
In terms of compensation, you should know the exercise by
the state of police power from the exercise of eminent
domain or expropriation.
In both cases, it involves the taking of property.
However, the difference is that in the exercise of the police
power, the property is normally noxious or harmful to the
general welfare and thus there is no expectation of
monetary consideration as compensation.
However if the property taken by the state is beneficial to
the general welfare, ten there is always compensation
because of the provision of sec 9 that states no person shall
be deprived of property taken for public use without
payment of just compensation.
NO TAKING OF PROPERTY
In police power, there is no taking of property. There is no
transfer of ownership. What is being regulated is the use of
the property.
PRINCIPLE OF DESTRUCTION OUT OF NECESSITY
It may only be taken when it becomes noxious to public
welfare under the PRINCIPLE OF DESTRUCTION OUT OF
NECESSITY.
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 CONSTITUTIONAL LAW
SAFEGUARDS FOR THE PROTECTION OF RIGHTS
In relation to the limitation in the exercise of police power,
you have those safeguards for the protection of rights of the
individual persons in the bill of rights, you have:
1. due process of law
2. equal protection of laws
3. non impairment of obligations of contracts
1. DUE PROCESS OF LAW
So if you are to understand police power fully, you have to
relate it to limitations and safeguards of due process.
HOW EXERCISED
How does due process, which is a right of the person, limit
the exercise of due process?
1. substantive due process
2. procedural due process
1. SUBSTANTIVE DUE PROCESS
It tests the validity of the law itself as to its
REASONABLENESS.
TESTS
It must comply with the two requisites:
1. subject matter must be lawful
2. means in achieving the purpose of the law is lawful
2. PROCEDURAL DUE PROCESS
You go by the requirements of procedure.
It is observed either in judicial process as well as quasi
judicial or administrative due process of the law.
DUE PROCESS ON POLICE POWER
As to due process with police power, the police power of the
state finds its justification in its observance of due process of
law. In fact the law can be challenged of its constitutionality
should it fail to comply with substantive due process such as
the two requirements I have mentioned
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2. EMINENT DOMAIN POWER
This is the power of the state limiting the ownership of your
property. The government, the moment it exercises this
power shall confiscate the property for public use upon
payment of just compensation.
EXERCISED ONLY WHEN THERE IS REFUSAL TO SELL
IOW this power of the state can only be exercised by the
state when there is refusal of the property owner to the
government’s offer to buy or acquire or take the property
for public use.
It is only when at the start the owner of the property refuses
to give up the property that the government will be
compelled to exercise the power of eminent domain.
So basically this is a confiscation of the property. For as long
as it is for public use and there is payment of just
compensation.
EFFECT OF PREVIOUS AGREEMENT TO SELL
So that if there was a previous agreement between the
government and property owner to sell the property, then
there is no point of an expropriation power to be exercised
by the government.
So when they started with negotiating on the sale of the
property, and if it not complied with the property owner,
the remedy of government is not expropriation, rather it will
be for SPECIFIC PERFORMANCE OF THE CONTRACT TO SELL.
WHO EXERCISES
This power is lodged in congress. And insofar as the exercise
of the congress, that is plenary.
This power is primarily lodged in congress except when the
power by express provision of the constitution is delegated
to the president, specially in the implementation of Land
Reform Program, both urban and Rural.
SUBJECT TO JUDICIAL REVIEW?
IOW therefore, if it is the national government that exercises
the power, the matter or the issue of WON taking is for
public use is beyond judicial inquiry. It is not subject to
judicial review.
It is only when the power is exercised by the delegate that
that power insofar as WON the taking is for public use can
be the subject of judicial inquiry.
IOW when the national government exercises judicial power,
the only issue for the court to determine is the matter of
payment of just compensation.
TO WHOM POWER MAY BE DELEGATED
This power may be delegated to
1. local governments
2. private corporations engaged in the operations of public
utilities
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 CONSTITUTIONAL LAW
REQUISITES IN THE VALID EXERCISE OF THE POWER
1. taking of the property in the constitutional sense
2. property is private property
3. for public use
4. payment of just compensation
5. observance of due process of law
1. TAKING OF PROPERTY IN THE CONSTITUTIONAL SENSE
-Case: Republic vs Catilve
There is the definition here on when it constitutes taking;
does it requires actual eviction of the property owner from
the property?
NO. As long as there is deprivation from the owner of the
property of the beneficial use of his property or at least the
purpose for which his property is intended, that is
compensable, even if the owner is not actually evicted from
his property.
-REQUIREMENTS:
a. entry in the property under color of title or authority
b. entry is permanent
c. owner is deprived of the beneficial use of the property or
at least the purpose for which the property is intended.
-IMPORTANCE OF KNOWING THE TAKING
Why is it important in knowing when was the taking of
the property?
Because that will be your basis in determining the
amount of just compensation.
The point of reference, considering the appreciation of
the value of the property, will be reckoned from the date of
the taking as defined in the case of Castilve.
Usually, it is based on the actual filing of the
expropriation case in court.
Although there are cases where the government may
have physically entered the property even before the
expropriation case is filed in court.
So it is the actual entry when the owner was deprived of
possession of property, WHICHEVER COMES EARLIER.
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EXERCISE OF POWER BY THE LOCAL GOVERNMENT
CONDITION PRECEDENT – OFFER & REFUSAL
There must be, as a condition precedent for filing of
expropriation case, an OFFER to the owner of the property
that is DEFINITE AND IN MONEY, and there is REFUSAL of the
offer by the property owner. Only then can an expropriation
case be filed in court. OW the case is dismissable for lack of
cause of action; or premature.
PROPERTY
Then let’s talk about the property involved.
1. anything that is the subject of expropriation
2. including the services
IOW it could be real or personal, tangible or intangible.
The only exception is money.
Of course PRIVATE because if it is already a property owned
by the government in its sovereign capacity, there is no need
to expropriate it because it already belongs to the state.
However if the property owned by the municipal
corporation are PATRIMONIAL PROPERTY, meaning owned
by municipal corporations in their proprietary capacity,
should there be any taking of that property, it is
compensable. (!!!)
PUBLIC USE
Take note what constitutes public use.
It is not the traditional concept of the property being used by
the public.
Anything that redounds to the benefit of the community or a
greater number of the people in the community, that is
considered as public use.
Example. When you have a property expropriated for the
purpose of relocating the squatters. Even if only 50 families
will be benefited from it, it si considered as for public use.
Example. Tourism purposes.
Case: Reyes
A property was taken for the construction of a golf course.
It was only for tourism purposes but it was considered as
taken for public use by the government.
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 CONSTITUTIONAL LAW
PAYMENT OF JUST COMPENSATION (!!!)
Master this of all the requisites for the valid exercise of
eminent domain.
HOW DETERMINED
Just compensation is determined by the courts.
There may be an initial definition of the just compensation
such as in the implementation of land reform in the Urban
Land Reform Program if the government through the
DARAB.
However the decision based on that is not yet final. Anyone
who questions and does not agree on it may always appeal
to the courts and ultimately it is the courts that determined
just compensation.
HOW TO DEFINE
So there are many items on how to define just
compensation.
It is equivalent to:
1. FMV of the property
2. consequential damages (added)
3. consequential benefit (deducted)
FAIR MARKET VALUE is the price where the seller is not
compelled to sell nor the buyer is compelled to buy, taking
into consideration:
a. location
b. classification
c. usage
d. size
e. potential of the property
f. improvements found in the property
WHEN TO PAY
Due process demands that there has to be PROMPT
PAYMENT.
Case: Republic vs Lim
TN of the DEADLINE provided for by this decision where SC
said that should there be no payment of just compensation
within 5 years from the finality of the judgment of the
expropriation case, that shall entitle the owner of the
property to recover his property.
Because usually in expropriation case, it is in simple fee,
therefore the transfer is absolute. Which means that the
owner as a general rule cannot move for the recovery of his
property. And non payment of compensation is not a ground
for recovery of the property.
But in this case, the SC has explained that should there be
no payment at all within 5 years, then the owner should
have the right to recover his property.
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RECKONING PERIOD OF PAYMENT
What would be the reckoning period of payment of just
compensation?
It would be based on the time of the taking of the property.
PAYMENT OF INTEREST AND REIMBURSEMENT OF TAXES –
PDVV ALLEGED IN PLEADINGS
Would the owner be entitled to the payment of the
interest and the reimbursement of taxes paid because
insofar as the transfer of ownership, it is only effective upon
full payment of just compensation? In the mean time, the
property would still be in the name of the property owner.
In which case, will he be obliged to pay the taxes of that
property until there is full payment of just compensation? Is
he entitled to the reimbursement of the taxes paid?
YES, if he alleges that in his pleadings.
OW he is considered to have waived that right for the claim
of the payment or the reimbursement of the payment of
taxes.
As to the interest rate, TN it is still 6% per annum until full
payment, on top of the just compensation.
It is only when there is delay in the payment of just
compensation despite repeated demands that the owner
shall be entitled to the payment of 12% per annum.
The interest will be reckoned from the finality of judgment,
when all appeals have been resolved, not on the rendition of
judgment. You start counting the 5 years from the entry of
judgment.
FORM OF PAYMENT
Generally, it has to be in CASH.
Recently, we have decisions of SC that in certain instances,
it is not necessary that it has to be in kind, but other forms
of payments other than the GOVERNMENT BONDS insofar as
expropriation of properties for the implementation of the
agrarian reform program of the government.
Case: CIR vs Central Luzon Drug Inc, June 26, 2006
Recently we have a decision relating to compensation in
form of TAX CREDITS. They are considered as just
compensation.
Now we have tax credits as well specially in the
implementation of the Senior Citizen’s Law on DISCOUNTS.
This is a form of taking of government; taking of income of a
private establishments because hey grant discounts of 20%
for senior citizens.
Because this is not by nature noxious that is taken by the
government, but is beneficial to the senior citizens, there
has to be compensation for that. In exchange, there are tax
credits that are given to these private establishments.
So this is now the form of compensation.
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 CONSTITUTIONAL LAW
Case: CIR vs Nicolandia Drug Corp, July 21, 2006
SC said, tax credit given to commercial establishment for
the discount enjoyed by senior citizens pursuant to RA 7432
is a form of just compensation for private property taken by
the state for public use, since the privilege enjoyed by
private citizens does not come directly from the state but
from private establishments concerned.
Case: Heirs of Antona vs Reyes
You have here socialized housing, as a form of payment of
just compensation.
HOW MUCH JUST COMPENSATION PAID BY GOVERNMENT
TO BE ISSUED PERMIT OF POSSESSION
How much just compensation should be paid by
government for the government to be issued with permit of
possession?
Under rule 67 of the Rules of Court, there are two stages in
an expropriation case:
a. when the government enters the property and has to
make payment is certain percentage so that they can be
issued a writ of possession
b. when there is the determination of just compensation
RULE 67 OF RULES OF COURT – 10% PAYMENT FOR THE
ISSUANCE OF WRIT OF POSSESSION
Under rule 67 of the Rules of Court, remember that the
deposit that must be made by the government so that a writ
of possession would be issued by the courts is just 10% of
the value of the property which is subject of the
expropriation, based on the assessment made by the
municipal or city assessor for taxation purposes.
For as long as:
1. the complaint is valid,
2. there is allegation that the taking is for public use, and
3. there is deposit of at least 10%,
it is ministerial on the part of the courts not, discretionary
to issue the writ of possession so that the government can
enter the property and start with whatever undertaking or
project that they intend to use the property.
This is without prejudice to the second stage of the
proceedings; the hearing of the just compensation of the
property.
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RA 8974 – 100% PAYMENT FOR NATIONAL
INFRASTRUCTURES
However, TN of RA 8974, this is the expropriation of the
national government for national infrastructures of the
government.
Because while rule 67 requires a 10% deposit for
government to enter, under RA 8974, it requires full
payment of the estimated value of the property based on
zonal valuation by BIR for taxation purposes.
This is without prejudice to the final determination of just
compensation by the courts.
TN of this law for purposes of multiple choice.
-NO VIOLATION OF SC’S PREROGATIVE TO AMEND RULES OF
COURT
Would this violate the ruling of the SC that only the SC can
amend the rules of court? Because this in effect amends the
rules of court particularly rule 67 of the Rules of Court,
particularly relating to the payment of deposits for the
purposes of expropriation?
NO.
Case: Republic vs Gingoyon
SC said, rule 67 outlines the procedure by which eminent
domain may be exercised by the government. Yet, by no
means will it serve as a present, a solitary guideline for
which the state may expropriate private property.
Example. You have sec 19 of LGC; this governs as to the
exercise of LGU of the power of imminent domain through
an ordinance. As far as LGC, it is 15%.
And then there is RA 8974, which covers expropriation
proceedings intended for national government
infrastructure projects.
Under RA 8974, which provides for a procedure imminently
more favorable to the property owner that rule 67,
inescapably applies to instances when the national
government expropriates properties for national
infrastructure projects. And according to SC in this case,
congress is never precluded from exercising its legislative
prerogative, the power being plenary insofar as congress is
concerned.
Although the matter of amending the rules is vested in the
SC under its rule making power.
Remember under sec 15, congress is never precluded
because it has the power to make laws.
Case: Republic vs Holy Trinity Realty Development
Corporation
There are at least two crucial differences between the
respective procedure under RA 8974 and Rule 67.
Under the statue, the government is required to make
immediate payment to the property owner upon the filing of
the complaint to be entitled to a writ of procedure.
Whereas rule 67, the government is required only to make
an initial deposit with an authorized government depository,
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 CONSTITUTIONAL LAW
and rule 67 prescribes the initial deposit to be equivalent to
the assessed value of the property for purpose of taxation.
Under RA 8774, it provides the relevant standard for initial
compensation, the market value of the property as stated
tax declaration or the current relevant zonal value of BIR
whichever is higher; and the value of the improvements or
structures using the replacement cost method.
PROPERTY FOR PUBLIC USE TAKEN FOR ANOTHER PUBLIC
USE
The purpose of the expropriation must be for public use.
Can you take a property already devoted for public use for
another public use?
If the power is exercised by the national government, YES,
because the power is plenary insofar s congress is
concerned.
But if the power is exercised by a delegate, there has to be
another law, a special grant authorizing the delegate to
expropriate the property already devoted to public use for
another public use. So LGC will not be enough to grant that
power to an LGU in order to take the property already
devoted to a public use for another public use.
PROPERTY EXPROPRIATED, SOLD FOR PRIVATE PURPOSE
If the property was originally taken for public use, can the
sale be now sold to a private purpose?
Example. NHA expropriates a property, the purpose is for
socialized housing. Later, it finds it as not appropriate for
that purpose and sells it to a developer. Can that be done?
YES.
Case: Asia’s Emerging Dragon Corp vs DOTC
The state though expropriation proceedings may take
private property even if admittedly it will transfer this
property again to another private party as long as there is
public purpose to the taking.
IOW the determining factor is only at the time of the taking
of the property, was it for public purpose or for public use.
Once it is satisfied, then the property can be taken. And it
becomes now the sole property of the government and the
government now can dispose of the property in any manner,
even selling it to a private party. Because here, the
government now becomes the owner of the property in
simple fee. It is is already the absolute owner of the
property.
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EFFECT IF LAW AS BASIS OF TAKING WAS DECLARED
UNCONSTITUTIONAL (!!!)
If upon the taking of the property was based upon a law and
later it was declared unconstitutional? How do you
determine the just compensation here?
Case: Chionson vs NHA
Where the initial taking of the property subject to
expropriation was by virtue of a law which was subsequently
declared as unconstitutional, just compensation is to be
determined as of the date of the filing of the complaint, and
not the earlier taking of the property.
LAW FREE PARKING SPACE – UNCONSTITUTIONAL
Case: SolGen vs AyalaLand Inc., Sept 18, 2009
This concerns of the free parking of the customers of the
mall. This was questioned because an ordinance was passed
requiring them to provide free parking.
SC said, the prohibition against collection by Ayala of
parking fees from persons who use the mall parking has no
basis in the national building code or its implementing rules
and regulations.
The state also cannot impose the obligation by generally
invoking police power since the said power amounts to
taking of Ayala’s property without payment of just
compensation.
IOW police power is not a justification in the prohibition
against the collection of parking fees.
If it is allowed, it amounts to taking of property without
payment of just compensation.
The collection of parking fee and its validity is sustained by
SC.
RECOVERY OF THE PROPERTY – WHEN SPECIFIC PURPOSE
WAS NOT ATTAINED
Remember that in recovery of the property, it depends the
kind of expropriation. Because now there is a new issue.
What if the property is taken for a specific purpose, like for
the construction of airport but no airport was established in
the property? Can the owner recover the property?
If the expropriation is conditional to a purpose, and it is not
served, it is like a donation; the owner of the property may
recover the property. But of course there has to be payment
of reconveyance, the initial payment to the owner of the
property. And of course you consider the improvements as
well at the time of the recovery of the property.
But if it is absolute, no conditions whatsoever, then there is
no obligation on the part of the government to reconvey the
property to the original owner of the property.
Case: ATO vs Tongoy
The right of the previous owners who were able to prove
the commitment of government to allow them to
repurchase the lands. So they had the right to recover the
property.
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 CONSTITUTIONAL LAW
EXERCISE BY PRIVATE CORPORATION ENGAGED IN
OPERATIONS IN PUBLIC UTILITY
When the power is exercised by private corporations engaged
in the operations of public utility, or quasi private
corporations such as water districts.
REQUIREMENTS FOR VALID EXERCISE OF POWER
What are the requirements as to LGU’s exercising the power:
1. definite offer in money
2. refusal
Case: MCWD vs JT and Sons Inc, April 16, 2009
What re the requirements?
For MCWD to exercise it power of eminent domain, two
requirements should be met:
1. BOD passed a resolution authorizing the expropriation
2. exercise of power of eminent domain is subject to review
by Local Utilities Administration (authority of LUA)
POLICE POWER VS EMINENT DOMAIN
PP: subject is usually a noxious property and thus there is
no payment of just compensation in monetary terms
ED: usually beneficial and for use of public therefore, there
should be just compensation
LIMITATION ON THE EXERCISE OF EMINENT DOMAIN VIS A
VIS DUE PROCESS, EQUAL PROTECTION OF LAW, AND NON
IMPAIREMENT CLAUSE
ON DUE PROCESS
There will be a hearing before the owner is deprived of his
property.
Hearing of the payment of just compensation.
Prompt payment of just compensation.
These are part of due process.
ON EQUAL PROTECTION OF LAWS
All persons situated under the same circumstances should
be treated alike by law.
ON NON IMPAIRMNET CLAUSE
As between the two, which one shall prevail? Eminent
domain or non impairment clause?
Non impairment clause is subordinate to eminent domain
power.
IOW if there is a contract of lease for example, between the
original owner of the property and the lessee and the
property becomes the subject of expropriation, can the
government take the property even if the period of the lease
has not expired yet?
YES. Because eminent domain is superior. The lessee may
be prejudiced by the termination of the contract because of
the expropriation. That may be compensable.
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3. TAXATION POWER
Taxation is the power of the state to raise revenue. This
power may be used by the state to enforce from the TP to
contribute.
TO REGULATE AND TO DESTROY
However if taxation is used in order to regulate the exercise
of one’s right, definitely the property can even be destroyed
by taxation power, such as imposing exorbitant taxes on
businesses, that might be perceived to be harmful opn
public welfare.
DOUBLE TAXATION
Is double taxation prohibited by the constitution?
The constitution is silent on the double taxation.
It becomes only unconstitutional when it violates equal
protection of laws.
So double taxation may result to taxing the same property
twice or more. But sometimes, the authority taxing the same
property are different. Or sometimes the purposes are
different but the result may amount to double of multiple
taxation insofar as that property is concerned.
For as long as it is applied to all properties situated under the
same circumstances, there is no violation on double taxation
because there is no prohibition against it.
It is only when it violates now the equal protection of laws,
then it becomes unconstitutional.
CHARACTERISTICS OF TAXATION
1. equitable
2. uniform
3. progressive
What is the difference between equitable and uniform
taxation?
EQUITABLE refers to the capacity of the TP to pay. So
depending on the income; in fact our tax system is
PROGRESSIVE – as the income bracket increases, the tax rate
likewise increases. That is equitable.
It is UNIFORM because it applies to all persons belonging to
the same class.
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 CONSTITUTIONAL LAW
GRANT OF TAX EXEMPTION
CONSTRUCTION
GR, all properties are subject to tax. In case of doubt, it
should be resolved against the TP.
SOURCES OF EXEMPTIONS
Should there be exemptions that should be granted, you
have those exemptions provided by the constitution, and
the exemptions granted by statutes.
VOTES REQUIRED TO GRANT EXEMPTIONS
How many votes are required to grant tax exemptions in
statutes?
Majority of members in congress.
If tax treaties?
2/3 votes of senate.
GRANT OF EXEMPTION BY LGU’S TO INSTRUMENTALITIES
Then we have tax exemptions granted by LGU’s in respect
to instrumentalities of notional governments.
Case: MCIAA vs Marcos
The case of Manila International Airport. The bottom line
there is that if the instrumentality is not exempted expressly
by law, the presumption under the LGC is that it is subject to
taxation by the LGU.
However, in case of doubt, SC said that it will be resolved in
favor of grant of tax exemption to the instrumentality of the
national government.
Therefore it is not subject to tax.
Case: PPA
PPA is engaged in proprietary functions. The lands that they
own un the performance of these functions, although for
public service, according to SC is not being owned by the
government in its sovereign capacity but its proprietary
capacity. Therefore, it is subject to tax.
TO WHOM POWER IS VESTED
Primarily, the power is vested in congress. The collection is
done by the executive branch, through the Department of
Finance, particularly the BIR, Bureau of Customs and the
other agencies of government.
But the imposition of taxes is primarily vested in congress.
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TO WHOM POWER IS VESTED
DELEGATION TO PRESIDENT
Same with the delegation of power, for example to the
president, on the tariff powers.
DELEGATION TO LGU’S
LIMITATIONS IN CONSTITUTION (SELF EXECUTORY)
TN of the limitations by the constitution to the LGU’s, that
even if there is no law passed by congress delegating the
power to the LGU’s, inasmuch as there is a constitutional
provision granting the power to the LGU, as they can levy tax
and raise revenue to ensure local autonomy, according to
SC, that is self executing.
So even if there is no express grant of congress, they may
exercise the power, because apparently, the mention of
‘law’ there refers to the limitations of the exercise of the
power of LGU’s because it is not inherent in them.
It is a delegated power, subject to such limitations as may
be imposed by law, meaning laws passed by congress.
But WON there is a law granting that power to LGU’s, it is
not necessary because no less than the constitution
delegated the exercise of the power to LGU’s to ensure local
autonomy.
LIMITATIONS:
AS TO DUE PROCESS
In compliance with due process, it must NOT BE
OPPRESSIVE or UNREASONABLE. OW it would tantamount to
taking the property without due process of law.
AS TO EQUAL PROTECTION OF LAWS
Taxation should be equitable and uniform.
AS TO NON IMPAIMENT CLAUSE
This is only on the matter of tax exemption.(!!!)
If the tax exemption granted to a TP is out of the generosity
of the state, meaning there is NO CONSIDERATION on the
grant of tax exemption, that is REVOCABLE by the state
anytime.
However, if the grant of tax exemption is ONEROUS,
meaning there is a valuable consideration in exchange for
the grant of tax exemption, that cannot be revoked by the
state as a general rule because the law now partakes the
nature of a contract protected under the non impairment
clause of the constitution. IOW it cannot be changed or
modified by subsequent laws such that you repeal or revoke
the grant of tax exemption based on a valuable
consideration.
THESE INHERENT POWERS LIMIT THE EXERCISE OF YOU
RIGHTS AS ENUMERATED IN THE BILL OF RIGHTS.
Kwin transcripts Page 120
 CONSTITUTIONAL LAW
BILL OF RIGHTS
CLASSIFICATION OF RIGHTS
1. civil rights
2. political rights
3. socio economic rights
4. rights of the accused
CIVIL RIGHTS
CIVIL RIGHTS are enjoyed more by citizens and foreigners
alike in this country.
Example. Freedom of speech, freedom of abode.
POLITICAL RIGHTS
POLITICAL RIGHTS are granted only to citizens of the country
so that they can effectively participate in governmental
affairs
Example. Right to vote and right to information and matters
of public concern.
SOCIO ECONOMIC RIGHTS
SOCIO ECONOMIC RIGHTS are rights granted to persons to
improve their standard of living or way of life. This is enjoyed
by citizens and foreigners subject to such limitations
provided by law.
Example. Ownership of property is enjoyed by both citizens
and foreigners except that foreigners cannot acquire lands in
the Philippines.
Example. Foreigners may engage in business except for those
reserved only for citizens of the country and other areas of
investments like retail trade business of mass media.
RIGHTS OF THE ACCUSED
Because of the presumption of innocence , he is afforded of
all the rights in order to put him in equal footing with the
state which is capable of taking his life, liberty or property.
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SEC 1
SECTION 1. No person shall be deprived of life, liberty, or property without
due process of law, nor shall any person be denied the equal protection of
the laws.
THREE BASIC RIGHTS PROTECTED
1. right to life
2. right to liberty
3. right to property
SECURITY may be covered by the right to liberty as part of
your right to privacy.
WHOSE RIGHTS?
Whose rights are protected under this provision?
‘Person’ may be a citizen of the Philippines or foreigners.
‘Person’ may be natural or juridical.
Insofar as natural persons are concerned, the guaranty of
those protection are for those there rights.
Insofar as juridical persons are concerned, it is limited only
to right to property.
RIGHT TO PORPERTY – COVERED
What is covered in the right to property? Does this include
the right to operate a vehicle? The right to bear arms?
Case: Chavez vs Romulo (firearms)
Case: Garin vs MMDA (driver’s license)
SC said, that the right to operate a vehicle and the right to
bear fire arms are not property neither property rights
protected under due process and equal protection of laws.
They are mere privileges granted by the state to an
individual subject to police power.
Even without hearing, these rights can be regulated by the
state, to the extent of taking it away from the person.
The law guaranties due process. Any taking or limitation or
regulation of the right to life, liberty or property, there must
be observance of:
1. due process
2. equal protection of laws
3. non impairment of obligations and contracts
In the Chavez case, there was the revocation of all licenses
issued to owners f firearms. There was no hearing, there was
just the pronouncement made the chief of PNP.
It was taken as taking of property right without due
process.
SC defined WON the bearing of firearms is a property or a
property right.
SC said that it is neither a property or property right, it is a
privilege granted by the state, subject anytime to police
power
So if it is not property, then it is not covered in the
protection of due process.
Kwin transcripts Page 121
 CONSTITUTIONAL LAW
HIERARCHY OF PROTECTION
In the hierarchy of protection, which of these rights are
protected?
Right to life.
Case: Social Justice Society et al vs Atienza
This is with reference to the depot in Pandacan that LGU
wanted to transfer. However this was objected to by the
owner of the depot because that would entail millions of
money, in the mean time there is the threat against the life
of the residents in Pandacan.
Sc said, essentially, the oil company is fighting for their
right to property, which they stand to loss millions if forced
to relocate.
However, based on the hierarchy of constitutionally
protected rights, the right to life enjoys precedence over the
right to property. The reason is obvious; life is irreplaceable,
property is not.
When the state or LGU exercises police powers clashes
with a few individual’s right to property, the former should
prevail.
Case:
Implementation of the Senior Citizens Act where there is
the objection of private establishment because this would
amount to the reduction of income.
SC said, when conditions demand as determined by the
legislature, property rights must bow to the primacy of
police power because property rights, though shouldered by
due process clause must yield to general welfare.
CANNOT BE INVOKED AGAINST ACTS OF PRIVATE
INDIVIDUALS (!!!)
Case: Irasuege vs PAL
In the absence of governmental interference, the liberties
guaranteed by the constitution cannot be invoked. The bill
of rights is not meant to be invoked against acts of private
individuals. This is against powers of the state.
So is it is only against private individual that your right to life
is being violated or regulated, you cannot invoke this
provision.
Because this is a limitation on the powers of the state against
the exercise of your rights as guaranteed a protection under
the bill of rights.
So this does not apply to the exercise of private power such
as termination of employment under the labor code.
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A. DUE PROCESS
SAFEGUARDS ON DUE PROCESS
There are two aspects:
1. substantive due process
2. procedural due process
1. SUBSTANTIVE DUE PROCESS
SUBSTANTIVE DUE PROCESS refers to the law itself. It is not
just the proper implementation of the law. There is also the
guaranty that the law must be fair, just and reasonable. It
should not void nor over breadth.
REASONABLENESS
How do you pass the test of reasonableness of the law?
You go back to the valid exercise of police power, which is:
a. the subject matter of the law is lawful
b. means in achieving the purpose is likewise lawful
These two must concur. OW there is violation of due
process, particularly on substantive due process.
OVERBREADTH DOCTRINE and VOID FOR VAGUENESS
DOCTRINE
Included on this matter, you TN of VOID FOR VAGUENESS
DOCTRINE and OVERBREADTH DOCTRINE, on FACIAL
CHALLENGE and AS APPLIED CHALLEGE on the
constitutionality of the law for it may violate due process of
law. You should relate these.
TN that these two can only be applied to your freedom of
speech. When these laws are passed, the subject of which is
the limitation on the freedom of expression or of freedom of
speech.
It does not apply to penal laws unless subject to the
penalty applied to penal laws are referred to or related to
the exercise of you freedom of expression like laws for libel
Case: Estrada
Like in the case of Estrada for plunder, where they were
saying that it should be considered unconstitutional for
being vague.
SC said that it should not be applied for penal laws unless
the penal laws involves your freedom of expression
particularly your freedom of speech, then you may apply this
rule
OVERBREADTH DOCTRINE
The law is so comprehensive that you cannot anymore
determine what is covered by the law as to its limitations as
to the exercise on the rights of individuals.
This is likewise unconstitutional for it violates the due
process of law.
VOID FOR VAGUENESS DOCTRINE
Same when the law is vague, which is the exact opposite
over breath.
Kwin transcripts Page 122
 CONSTITUTIONAL LAW
EFFECT: UNCONSTITUTIONAL
I am discussing this in relation to due process. Precisely it is
declared unconstitutional because the person concerned
subject of the law is not properly appraised of what the law
is because it is over breadth or vague. The discretion is left
on the person implementing it what the law is.
That should not be the case OW it is a violation of due
process of law.
HOW TO CHALLENGE
And how you may challenge its constitutionality is either:
a. FACIAL CHALLENGE
-question the constitutionality on the face and not have
to apply that to a case you are involved. it may only be
on the tenor of the law itself that you question its
constitutionality, by invoking the 2 grounds of over
breadth or void for vagueness doctrine
b. AS APPLIED
-you are involved in a case and you are aggrieved, and
you ask the court to declare the law unconstitutional for
it violates due process, and you were prejudiced by the
application of the law
2. PROCEDURAL DUE PROCESS
CASES COVERED
This is not purely judicial. It could be quasi judicial or
administrative.
JUDICIAL in criminal cases and civil cases.
Civil cases, you have Palanca case.
Criminal cases, you have Pabarat vs SB, People vs Vera
Administrative cases, you have Ang Tibay case, and that
involving students on actions relating to violations to school
rules and regulation where the student is the respondent of
the case.
Case: Palanca
The court must be impartial and have the authority to hear
and try the case.
The court must have acquired jurisdiction over the person
of the defendant or at least over the property subject of the
case.
That the defendant is given the opportunity to be heard
and whatever judgment that is rendered by the court is
based on the evidence presented or at least found in the
records of the case, meaning after trial is conducted in the
court.
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OPPORTUNITY OF HEARING
The bottom line in due process of law is opportunity of
hearing.
What is abhorred is when there is total denial of hearing.
As long as the respondent, defendant , accused in the case is
given the opportunity even if there is no actual hearing
conducted, there will be no violation of procedural due
process of law.
All that is needed is the opportunity of hearing and thus
requires notice of hearing in order to give the party the
opportunity of hearing
INSTANCES WHEN HEARING OR NOTICE OF HEARING IS NOT
REQUIRED
Another point you should TN in the requirement of hearing
to comply with due process are the exceptions when no
hearing is no required, and even notice is not required:
a. administrative agencies are exercising quasi legislative
functions
-if it is exercising quasi legislative or administrative
function, no hearing is required, even if it might affect
rights of a person to property
-example. Fixing rates by MTC for test massages.
Fixing rates is legislative.
But the moment you reduce or increase the rates, that is
quasi judicial, and that would require hearing.
-example. When there is contrariety of rights that would
be resolved by an administrative body exercising its quasi
judicial function, hearing is mandatory.
b. abatement of nuisance per se
c. granting by courts of provisional remedies
-example: writs of attachment or replevin
Because to conduct the hearing, you might be warning
the respondent of the civil case. It may be done ex parte
PVDD that there is jurisdiction.
Service of the writ should be simultaneous to the
service of summons OW void for violation of due process
because he has not acquired jurisdiction over the
defendant.
d. preventive suspension
-example. Preventive suspension of an erring public
official in an administrative case.
Because preventive suspension is not a penalty yet but
merely a precautionary measure. So it can be issued by
administrative agency like the ombudsman, even without
first notifying the respondent that a complaint had
already been filed against him.
Kwin transcripts Page 123
 CONSTITUTIONAL LAW
e. removal of temporary employees in the government
service
-Because he does not enjoy security of tenure. (no
reason is needed)
Only those regular and permanent employees of
government enjoy security of tenure. Meaning they can
only be removed for causes provided by law which is
determined only after due process is observed.
f. issuance of warrants of distraint and/or levy by BOR
Commissioner
-Because there was already prior notice of tax deficiency.
g. cancellation of passport of a person charged with a crime
-Because how can you notify a respondent or accused
when he cannot even be found.
h. issuance of sequestration orders
i. judicial orders which prevents the accused from travelling
abroad
-May be done even before the accused is arrested, ex
parte just to make sure he will not escape
j. suspension of bank’s operation by MB upon prima facie
findings of liquidity problems
-No need for Central Bank to notify the bank concerned.
They may just immediately take over the bank deposit to
protect the deposits from being absconded by the
officers of the bank or owners.
k. extradition proceedings
-Before the arrest, there can be issuance of the
extradition order issued even before the subject of
extradition is notified of the fact of extradition.
But the moment this reaches the court, then that
would entitle him to notice.
This is just the preliminary or evaluation stage of the
extradition proceedings.
l. reinvestigation of criminal cases
-If the fiscal affirms the decision of indictment of the
accused, should the accused be notified of the resolution
of the fiscal? NO. that is not required because there is a
previous preliminary investigation conducted where the
accused was sufficiently notified.
HEARING NEED NOT BE TRIAL TYPE
TN that hearing here is not always the trial type. It includes
the requirement of pleadings so that even without the trial
type of hearing conducted by the court, for as long as the
defendant or respondent of the case is given the chance to
submit his pleadings in order to tell his story, there is no
violation of due process.
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ACQUISITION OF JURISDICTION OVER THE PERSON OF THE
DEFENDANT
-CIVIL CASES
On the acquisition of jurisdiction over the person of the
defendant, how is jurisdiction acquired in civil cases?
It is through the service of summons:
a. personal
b. substituted
c. by publication
SUBSTITUTED SERVICE OF SUMMONS is given to person
responsible who is of age.
SERVICE OF SUMMONS BY PUBLICATION is availed of when
the address of the defendant is unknown or he has gone
abroad and his return is not definite, whether the action is in
rem or in personam.
In civil cases, sometimes, when the defendant cannot be
found, before publication, the court may acquire jurisdiction
over the defendant through acquiring jurisdiction over the
property of the defendant, through a REPLEVIN or through
an ATTACHMENT; where you place the property of the
defendant under the control of the court because of the
principle that wherever the principal is, the accessory
follows. In this case, the principal is the land and the owner
is just merely the accessory.
-CRIMINAL CASES
How does the court acquire jurisdiction over complainant
of the case?
Upon the filing of the case.
How about the accused?
When the accused surrenders to the court or when the
accused is arrested pursuant to the warrant of arrest issued
by the court.
-ADMINISTRATIVE CASES
How about administrative cases?
Upon service of the notice requiring the respondent to file
his controverting evidence.
Kwin transcripts Page 124
 CONSTITUTIONAL LAW
PRESENTATION OF EVIDENCE BY THE DEFENDANT
-OPPORTUNITY TO PRESENT
He must be given a day in court. But TN only opportunity is
given.
Included in this presentation of evidence is the right of the
defendant to cross examine the witnesses of the plaintiff
which is not only indispensible in criminal cases, but also in
civil cases.
In criminal cases, all the more it is important. This is part of
the right of the face to face confrontation of the witness of
the prosecution, OW testimony of the witness is
inadmissible in evidence against the accused for violating
due process.
-WHEN MAY NOT BE AVAILED OF
TN that this may not be availed of by the defendant if he is
declared in default in civil cases or in criminal cases where
there is trial in absencia because the accused has jumped
bail or he has escaped from jail, in which case, the right to
cross examine is waived.
-AVAILABLE IN ADMINISTRATIVE CASES
In administrative cases as well, this is available because it is
adversarial in nature.
RIGHT TO CROSS EXAMINE WITNESS
-NOT AVAILABLE IN PRELIMINARY INVESTIGATION
But if in some cases where there is clarificatory hearing by
the fiscal in a preliminary investigation, the right to cross
examine is not available.
The accused cannot cross examine the witnesses of the
complainant. Should he ask questions, it should be
addressed to in a clarificatory hearing, to the fiscal to ask
and it is discretionary to the fiscal to ask the questions,
because such right this not available to the accused in a
clarificatory hearing in a preliminary investigation.
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JUDGMENT BASED ON EVIDENCE AND RECORDS
Whatever judgment is rendered, it must be based upon the
evidence presented or at least based on the records of the
case.
Case: Ang Tibay vs Court of Industrial Relations
In an administrative case in the bar exam, the respondent
was convicted and punished for acts that were not covered
in the original proceedings subject to an appeal.
He was convicted for gross negligence and the penalty was
merely suspension.
When he appealed the case, another similar incident
happened. And because of that incident, instead of
confirming the suspension, the appellate authority or
tribunal increased the penalty to termination of service
based on the subsequent incident that was not the subject
of the original proceedings
SC said that there was denial of due process. Should there
be judgment, it must be based on the evidence presented by
the parties or at least found in the records of the case
DUE PROCESS IN EDUCAIONAL ESTABLISHMENTS
Due process as observed in educational establishments
where the student is the subject of investigation. It is
adversarial and he is entitled to due process as guaranteed
by the constitution.
REQUISITES
1. know in writing the charges filed against him
2. opportunity to controvert the charges
3. assisted with counsel
4. tribunal must be impartial
5. judgment must be rendered only after hearing
Kwin transcripts Page 125
 CONSTITUTIONAL LAW
B. EQUAL PROTECTION OF LAWS
GUARANTY OF EQUAL PROTECTION OF LAW
Persons situated under the same circumstances should be
treated alike by law in terms of rights conferred by law and
obligations imposed.
SUBSTANTIAL DISTINCTION
WHEN CLASSIFICATION IS ALLOWED – REQUIREMENTS
This is more on the classification.
It allows classification for as long as there is:
1. a substantive distinction
2. distinction is germane to the purpose of the law
3. applies to: a. existing conditions
b. future conditions
4. applies to all persons situated under same circumstances
Case: Philippine League of Cities
One of their arguments is that they should be specially
treated.
There is the amendment in the LGC that refers to the
increase in the requirements in income, population and area
into a city.
They are saying that that law should not be applied to them
because at the time, this bill was still pending even prior to
the enactment of the law.
The basis there is substantial distinction between the first
16 municipalities to be converted into cities and to the rest
of the municipalities who may later apply for conversion into
cities, applying now the amendment of the LGC as regard to
requirement.
Case:
The creation of the Truth Commission was declared
unconstitutional by SC.
One of the issues there was WON there was a substantial
distinction in the subject of the Truth Commission.
The purpose was to curb graft and corruption. But there is
the focus of the investigation was on the GMA
administration. So the question is that is this group distinct
from other groups who may be involved in graft and
corruption? Why GMA Administration only? Why not other
administrations? Does it mean that they are less corrupt or
not corrupt at all?
Case: Trillanes vs Pimentel
This involves the enforcement of penal laws.
Case: People vs Jalosjos
Case: USA vs Poroganan
Basis of substantial distinction is position in the
government. would that be a substantial distinction in terms
of the enforcement of our criminal laws?
SC in all these three cases says that there is no substantial
distinction.
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Case: Farinas vs Exec Sec
Case: Quinto vs Comelec
The issue there is WON the nature of the position of the
government is a substantial distinction in terms of
considering him as automatically having resigned upon the
filing of certificate of candidacy; between an appointive and
elective individual.
SC said, that in both cases, after the reversal of the
resolution of Quinto vs Comelec, there is a distinction
between an appointive and elective official.
If you are APPOINTIVE and you file for a certificate of
candidacy, automatically, ipso facto, you are deemed to
have resigned from office.
But if you are ELECTIVE, it’s not automatic. So that if you
lost the election, you can still go back to your previous
elective position for as long as the term has not expired
with. Why? Because you have a covenant with your
constituent to serve them for a definite period of time.
In Quinto case, SC said that there is no distinction.
Then there was MR filed and the SC reverted back to the
case of Farinas vs Exec Sec.
DISTINCTION IS GERMANE TO THE PURPOSE OF THE LAW
You focus on substantial distinction in relation to the
relevancy of the distinction to the purpose of the law.
If for example, the purpose of the law is to enforce the
criminal laws; would the purpose be accomplished by the
distinction.
If there is no relevance, then there should not be any
classification. So these two must actually relate to each
other
APPLICABLE TO EXISTING AND FUTURE CONDITIONS
It must not only be applicable to existing conditions but as
well as future conditions.
Case:
This is the matter hat was tackled in the case involving the
truth commission. Apparently, there is no clear distinction.
And apparently, it is not relevant to the purpose of the law
because it only focuses on the administration of GMA. And
finally, it would seem like it applies only to that
administration. It may not apply to future conditions.
There was also a question on the power of the president to
create the commission, considering that it should have been
congress to create an office.
That was sustained by SC as part of his power to control
over the executive branch and the power to reorganize.
Case: People vs Kayat
This relates to the matter of drinking of liquor. It is
applicable only to them. But there is no violation of equal
protection of laws because it at applies not only to existing
conditions but as well as to future conditions for as long as
they react adversely to imported liquor.
Kwin transcripts Page 126
 CONSTITUTIONAL LAW
C. NON IMPAIRMENT OF OBLIGATIONS AND CONTRACTS
We relate this to one of the safeguards against police power,
eminent domain and taxation, and protecting the rights to
life liberty and property.
PROTECTION OF EXISTING RIGHTS AND OBLIGATIONS OF
PARTIES TO CONTRACT
GR, congress and delegates are prohibited from passing a law
that will modify or change the terms and conditions of
existing contract or agreement protecting the rights and
obligations of the parties to the contract.
Because it is possible that the law may change the agreement
however it does not affect the rights and obligations of the
parties with reference to the contract. So there will be no
violation there of the non impairment clause.
CONTRACTS COVERED
TN that the contract being referred to as protected under the
laws are civil obligations; and agreement between parties, to
give or not to give, to do or not to do.
CONTRACTS NOT COVERED
This does not cover:
1. marriage contract
It is not an ordinary contract. it is a social institution and
therefore it is subject to the protection or interference of
state by law.
2. law granting pensions
Pensions are not contract. it can be modified by
subsequent laws
3. licenses
4. public office
5. concessions to engage in logging or mining
6. permits to operate certain business
7. engaging in cockpit operations
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EXCEPTIONS RELATION TO THE INHERENT POWERS OF THE
STATE
TN more on the exceptions on non impairment clause in
relation to police power, eminent domain or taxation.
1. POLICE POWER
If it is for police power, even if there is a contract of
employment in terms of agreement of wages, that can
always be subject to a subsequent law, justified by police
power.
Between non impairment clause and police power, police
power is superior. It always prevails over contracts. After all,
police power cannot be a subject of a contract, for it will
delay the enjoyment of sovereignty by the state.
2. EMINENT DOMAIN
Between non impairment clause and eminent domain,
eminent will always prevail. Non impairment clause is
subject to eminent domain power of the state.
3. TAXATION
Between non impairment clause and taxation, taxation will
generally prevail.
EXCEPTION (1) GRANT OF ONEROUS EXEMPTION
Tax is the lifeblood of the government. Contracts can always
be limited by the taxation power of the state; except in the
matter of granting tax exemption.
If the grant of taxing power is gratuitous, anytime, that can
be revoked. However if it is onerous, that can be protected
by the non impairment clause. Therefore it cannot be
repealed or revoked.
EXCPETION (2) WAIVER
Another exception is when there is a waiver of the non
impairment clause; when the parties themselves will
stipulate in the contract that the terms of their agreement is
subject to subsequent laws, different from the law
governing between the parties.
By that waiver, the contract can now be subject of future
laws providing for terms contrary to what was agreed upon
by the contract.
Kwin transcripts Page 127
 CONSTITUTIONAL LAW
EXCEPTION (2) FREEDOM OF RELIGION AS AGAINST CLOSED
SHOP AGREEMENT
This is with reference to the freedom of religion and the
contract.
Case: Rizalde
Closed shop agreement – no more shopping of a union in
the company. This may be included in the collective
bargaining agreement between the company and the union
that for the employees to avail of the benefits that the
company could given, they must be members of the union
recognized by the company.
This is considered valid in order to protect labor, despite
the police power of the state. It is sustained. There is no
violation of the right to association where employees are
virtually compelled to become members of the union as an
exception to the exercise of police power.
However, if the religion of the employee does not allow
them to be members of union; under a law, the SC sustained
its validity as part of its police power on freedom of religion
to allow these employees, notwithstanding that they are not
members of the union to enjoy the privilege that may be
extended by the union as an exception.
SC said that as between freedom of religion against the law
that may impair an existing contract such as closed shop
agreement, freedom of religion is superior.
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SEC 2 – RIGHT AGAINST UNREASONABLE SEARCHES AND
SEIZURE
SECTION 2. The right of the people to be secure in their persons, houses,
papers, and effects against unreasonable searches and seizures of whatever
nature and for any purpose shall be inviolable, and no search warrant or
warrant of arrest shall issue except upon probable cause to be determined
personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing
the place to be searched and the persons or things to be seized.
CONSTITUES THE RIGHT TO PRIVACY
If you are asked, which of the following constitutes your
RIGHT TO PRIVACY, one of which is the right against
unreasonable searches and seizure.
There is no specific provision that says you have the right to
privacy.
It is so provided in sec 2 that no person shall be searched and
seized without a search warrant or a warrant of arrest.
-WRIT OF AMPARO
Case: Secretry of National Defense vs Manalo
The right to security of a person is a guaranty of protection
to one’s rights by the government.
In the context of a writ of amparo, the right is delved into
the guaranties of right to life and liberty under art 3, sec 1 of
the 1987 constitution and the right to security as freedom
and guaranty of bodily and psychological integrity under art
3 sec 2.
Just in case, you will be asked on the right to privacy and
right to security, this is one of the right guaranteed under
the bill of rights.
So what will be the subject for the application of the writ of
amparo? There is a violation of the right to privacy
particularly on the unreasonable search and seizure where a
person is arrested without warrant or his things seized
without a warrant or his home is search without a warrant.
UNCONSTITUTIONAL – SEARCH WITHOU WARRANT
So the GR is, any search without a warrant is unreasonable
and therefore, unconstitutional
Kwin transcripts Page 128
 CONSTITUTIONAL LAW
REQUISITES FOR APPLICATION OF SEARCH WARRANT
Therefore, you should know what are the requirements in
order to apply for a search warrant or a warrant of arrest.
No less than the constitution provides for the requisites.
CASE IS NOT REQUIRED TO BE FILED IN COURT
Here, it is not required that the case is filed in court. Precisely
you are asking the court to intrude into the privacy of the
person so that you can seize the things and be able to
establish the condition of the crime relating him to the
accused who may have committed the crime.
REQUISITES
First, let’s talk about search warrant. What are the
requirements for an application of a search warrant? (rules
on criminal procedure)
1. subject for application of search warrant:
a. property or thing is subject of the crime
b. property is the fruit of the crime
c. thing is used as a means of committing the crime
2. establish the existence of PROBABLE CAUSE
These are facts and circumstances antecedent/before
the application of the warrant that would lead a prudent
man to believe that the crime has been committed and the
things you intend to search and seize may be found in that
place, that would probably establish the crime, in linking
the person who may have committed the crime.
-WHO DETERMINES
Only the judge can determine probable cause, if the
purpose is investigation and/or prosecution.
Because if the purpose is only to carry out a final finding
of violation of law, it may not be necessary for the judge to
issue the search or seizure warrant.
Example. When the goods are established to be
smuggled, they were concealed to avoid the payment of
taxes, the commissioner of customs can immediately order
the seizure of the smuggled goods to forfeit them. That is
to carry the final finding. No more investigation, no more
prosecution. In which case, that administrative authority
can issue the seizure order.
-HOW TO DETERMINE PROBABLE CAUSE
How is probable cause determined by the judge?
1. personally examining the applicant and his witnesses
2. under oath
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Kwin
PERSONAL EXAMINATION has to be done in SEARCHING
QUESTION AND ANSWER. OW it is merely based on
affidavits. That would be a violation of the requirement of
the constitution.
-REQUISITES CONDUCT OF SEARCHING QUESTION AND
ANSWER
a. recorded by a stenographer
b. ex parte summary
c. whatever proceedings that has transpired will be put in
writing and attached to the records of the case
CONTENTS OF SEARCH WARRANT – PARTICULARITY
REQUIRMENT
The moment that the judge is convinced to issue a search
warrant, there has to be particular description of:
1. crime charged
2. place to be searched
3. things to be seized
1. CRIME CHARGED
-GENERAL WARRANT/SCATTERSHOT WARRANT
If there is no mention what violation these things are to
be seized, that’s a GENERAL WARRANT. And it is void for
not complying with particularity requirement.
SCATTERSHOT WARRANT is unconstitutional for it is a
general warrant. It is the exact opposite of not placing the
charge and placing as many charges so that the raiding
party will have the leeway to get as many things that would
relate to the many charges alleged in the search warrant.
This is prohibited because it violates the requisite of
particularity.
-ONE OFFENSE FOR ONE WARRANT
One search warrant for one specific offense only. It could
be that there is one law, however there are many sections
of law.
2. PLACE TO BE SEARCHED
-REQUISITE OF PARTICULARITY
Do you need a technical description of the place subject
of the search?
NO.
Case: People vs Vallejo
As long as you can particularly point with certainty and
particularity the identity of the property to be searched for
and seized so that the warrant will not be a mere ROVING
COMMISSION.
3. THINGS TO BE SEIZED
-WHAT IS TO BE TAKEN (!!!)
Case: Vallejo vs CA
Nothing is left to the discretion of the officer executing
the search warrant.
Kwin transcripts Page 129
 CONSTITUTIONAL LAW
REQUISITES FOR APPLICATION OF SEARCH WARRANT
WHO ISSUES
In the case of a warrant of arrest, only a judge can issue a
warrant of arrest. That is for the purpose of investigation
and prosecution.
However, if the purpose is to carry out a final finding of
violation of law, an administrative authority may issue the
seizure order of the person such as the case of the
commissioner of the Bureau of Immigration and deportation
as against undesirable alien for purposes of deportation.
There, there is no more investigation and prosecution. All
that the commissioner has to do for the purpose of issuing
the warrant is to have him deported; such as for those illegal
aliens overstaying in the Philippines. It’s easy. They will just
confer with the records.
ON REQUISITE OF PERSONAL DETERMINATION OF THE JUDGE
REQUISITE: CASE MUST BE FILED IN COURT
TN that before a warrant of arrest is to be issued by the
judge, a case has to be filed in court, unlike the search
warrant.
Before a case is filed in court, there is already a
determination of probable cause by the fiscal for proposes
of indictment.
Once the case is filed in court, is the issuance of the warrant
of arrest by the court automatic?
NO. Because of the requirement of the constitution saying
that there has to be a judicial determination of probable
cause for purposes of issuing a warrant of arrest.
Kwin
For as long as the judge makes his own independent finding
of the probable cause, even if he may adopt in toto the
findings of probable cause of the fiscal
PROBABLE CAUSE: FISCAL’S FINDINGS VS JUDGE’S FINDINGS
-FISCAL’S FINDINGS OF PC
As far the fiscal is concerned, the PC refers to the facts and
circumstances antecedent to the filing of the case to believe
that this person charged has probably committed the crime
and is probably guilty thereof. That is executive.
-JUDGE’S FINDINGS OF PC
In the judicial determination of probable cause that a crime
has been committed and the person to be arrested must
have probably committed the crime.
REQUISITE OF PARTICULARITY
You have to describe the person subject of the warrant of
arrest by his name and particularly found in a particular
address.
If his name is unknown, you place there John or Jane Doe. It is
sufficient for as long as there is particular description of the
person that would distinguish him from the rest of the
human race. And you do that by identification of the
witnesses.

HOW TO DETERMINE PROBABLE CAUSE

How does the judge conduct the determination of probable
cause? Is it like in a searching question and answer as when
you apply for a search warrant?
NOT NECESSARILY. Unless the judge deems it proper to call
the complainant and substantiate his allegation in order to
convince the judge that indeed there is probable cause to
believe that the crime has been committed and the person
to be arrested has probably committed the crime that would
require his immediate custody of the law.
Or the judge may just simply PERSONALLY EXAMINE THE
RECORDS OF INVESTIGATION and adapts the finding of
probable cause by the fiscal.
TN however that upon reaching the decision, it must be
based on his INDEPENDENT REVIEW of the records of the
preliminary investigation and makes his own independent
findings of probable cause.
That will be considered as substantial requirement to the
personal examination of probable cause for the purpose of
issuing the warrant of arrest.

Briefly, either the court:

1. calls the witnesses of the complainant again
2. base it on the records of preliminary investigation

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 CONSTITUTIONAL LAW
Kwin
OTHER FORMS OF INTRUSION OF RIGHT TO PRIVACY RIGHT TO PRIVACY CANNOT BE INVOKED BY PRIVATE
On the matter of searches and seizure, this is not limited to OFFICIALS
the body of the person or his home or place or the seizing of The right to privacy cannot be invoked by public officials.
things.
EXCEPTIONS TO REQUIREMENT OF SEARCH WARRANT
TN on the matter of right to privacy, there may be intrusion in 1. incidental to a lawful arrest
a different form such as the requirement for blood test for 2. evidence in plain view
purposes of the application for driver’s license. 3. with consent
Because you are being charged criminally, you are being 4. search in a moving vehicle
asked to get drug test. 5. customs search
If you are going to file a certificate of candidacy, you need to 6. stop and frisk/Terry search
get a specification that you are not a drug addict. 7. search in cases of armed conflict or during war time
In a recent controversy where students were required to 8. check points
undergo drug test in private schools before they are allowed 9. exigent or emergency circumstances
to enroll. 10. routine airport search
You have drivers now being required to undergo drug test.
Would these be a violation against unreasonable search and 1. SEARCH INCIDENTAL TO LAWFUL ARREST
seizure? IMMEDIATELY AFTER OR SIMULTANEOUS
It has to be immediately after or simultaneous to a lawful
Case: SGS vs Dangerous Drugs Board and PDEA, Dec 3, 2008 arrest.
(!!!)
SC declares as unconstitutional the law that requires drug LAWFUL ARREST
test. Arrest is lawful if:
The law includes he requirement of drug test certification a. it is with a warrant
before you file for certificate of candidacy OW you will be b. it falls under the exceptions under rule 113 of rules of
disqualified. court
Even those who are charged with estafa are required to go 1. in flagrante delicto
through drug test. 2. hot pursuit
Never mind the requirement of LTO because that is 3. escapee from jail
justified by police power. So that the search made after the arrest is lawful, even if it
And then you have some complaints to violation of human is made without a warrant.
rights as it violates the right to privacy as far as the students
are concerned. LIMITATIONS
SC declared as unconstitutional the provision of RA 9165 a. done within the premises under the control of the person
requiring mandatory drug testing of candidates for public arrested
office and persons accused of crimes.
However SC upheld the constitutionality of said RA insofar Case: People vs Chu
as random drug testing for secondary and tertiary school Case: People vs Estella
students as well as for officials and employees of public and The arrest was made in one place, the search is made in
private offices is concerned. There can be random drug test. another place. That cannot be allowed.
The justification there is police power; the need for drug
testing to at least minimize illegal drugs is substantial
enough to override individuals’ private interest under the
premises.

Case: Ople vs Torres

On the matter of computerization on national
identification. This has something to do with your right to
privacy.
SC declared it as unconstitutional.

In a subsequent case, SC has sustained on the

constitutionality as long as it will not go into the
constitutionality of the individual.

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 CONSTITUTIONAL LAW
4. SEARCH IN A MOVING VEHICLE
MUST BE MOVING
TN it must be moving. And usually it is motorized.
Case: Fernandez
The motorcycle was just parked and it was seized without a
warrant. Is was objected to as evidence.
According to them it was used as an escape vehicle of the
fugitive and they saw it parked near a nipa hut.
SC said it is inadmissible. It was seized without a warrant. It
was not moving, it was parked. IOW there ws no urgency to
seize it.
LIMITED TO VISUAL SEARCH
TN the search is limited only to visual search. There is no
extensive search.
Unless there is a probable cause that a crime has been
committed, then an extensive search may be justified.
Case: Robin Padilla
There was visual search. It was apparent to the eye of the
searching party who arrested eventually Robin because of
the firearms from outside of the van by the arresting officers
that laid on the floor of the van.
Kwin
because of the third requisite.
Case: People vs Go
This relates to the sealed stamp pad that were recovered b
the searching party in a case of violation of immigration laws
of foreign government. There was this agency that was
raided by the police because they suspected them of issuing
fake Chinese Visa. They were on the table.
However that fact was only certain or confirmed when it
was declared by Chinese embassy that indeed these were
counterfeit seals. But prior to the confirmation of the
embassy, they will not know if the rubber stamps and seals
were excluded in the commission of the crime.
Thus SC said they were inadmissible because they were
searched without search warrant.
(07-09 discussion)
Case: Manalili vs CA
Case: Del Rosario vs Poeple

2. SEIZURE IN PLAIN VIEW

REQUIREMENTS
TN of the requirements. It cannot be just seen on the table
if you have no business to be in the premises where the
table is where you saw the contraband.
So these are the requisites
a. prior valid intrusion
Based on the valid warrantless arrest in which the police
are legally present in the pursuit of the official duties.
IOW the presence in the premises must be legal.
What is the basis of the legality? That they are armed
with a search warrant although the things to be seized
were not included in the enumeration of the things to be
seized in the search warrant. Bt because they are
implementing a search warrant, their presence in the
premises is legal.
Or when the owner of the property allows them to enter
the house, then the presence in the property is legal.
(7-09 discussion) The person must have a legal basis to
be in the premises where they have found the contraband.

b. evidence was inadvertently discovered by the police who

had the right to be there.
Inadvertence. By mistake. Not by a deliberate search.
Example. If you are looking for long firearms, you cannot
seize the bullets hidden in a tea cup.

c. evidence must be immediately apparent to the senses

IOW if you only suspected that what is covered is
contraband and you opened it and inside was marijuana,
what may happen? It may be seized because they are
contraband but they are NOT ADMISSIBLE IN EVIDENCE

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 CONSTITUTIONAL LAW
July 9, 2011
3. WITH CONSENT/WAIVER
REQUIREMENTS FOR A VALID WAIVER
However take note of the requirement in order to consider
it a valid waiver:
a. he knows he has the right
Knowledge could be actual or constructive.
b. the right exists at the time of search
c. despite knowledge of the fact that he has the right, he
voluntarily, intelligently and freely waives the right
5. CUSTOMS SEARCH
NO SEARCH ON RESIDENTIAL HOUSES
You cannot search for smuggled goods or goods tat were
concealed for the payment of taxes in residential houses.
Only in buildings.
So if your justification is because they are smuggled goods
but they are found in a residential house, you should have a
search warrant for that.
6. STOP AND FRISK/TERRY SEARCH
This was based Terry vs Ohio Case.
STOP AND FRISK SEARC VS SEARCH INCIDENTAL TO LAWFUL
ARREST
You should know the difference between the search
incidental to lawful arrest and the stop and frisk search.
SF: -search first then arrest
-you stop a person because of suspicion which is
reasonable that he may be engaged in a criminal
activity
-you can immediately stop and search him
-limited to outer clothing of person subject of search
-not an extensive search
-the moment contraband is found, you can make an
arrest
PVDD you have to have probable cause that he
committed an offense to make a warrantless
arrest
-may fall on the first exception – accused
committing a crime in the presence of arresting
officer
SILA: -arrest first then search or simultaneous
-more extensive search
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Kwin
7. SEARCH IN CASES OF ARMED CONFLICT OR DURING WAR
TIME
8. CHECK POINTS
ONLY VISUAL SEARCH
This is limited only to visual search, like in a moving vehicle.
REQUIREMENTS
a. establish that it is a check point
There has to be a purpose why a check point is
established so that if there is any search, it would be
limited only for that purpose.
b. immediately apparent to the public that you are
establishing a check point
c. no extensive search
Except when you can establish probable cause because
it is limited only to visual search
Case: People vs Escanio
9. EXIGENT OR EMERGENCY CIRCUMSTANCES
Allowed when there is a prevailing general chaos and
disorder because of on going ___.
Or you may establish area, target, zones or saturations
following a coup d’ etat.
Case: Buanzon
10. ROUTINE AIRPORT SEARCH
Case: People vs Suzuki
Case: People vs Johnson
CONSEQUENCES IF SEARCH AND SEIZURE IS ILLEGAL
What will be the consequences if the search and seizure is
illegal?
1. evidence is excluded under EXCLUSIONARY RULE
The principle is, being the fruit of the poisonous tree, it
is also poisoned fruit. It is inadmissible.
2. recovery of illegally seized items
Unless they are contraband, being in custodial egis,
you can recover the property by application of a WRIT OF
REPLEVIN.
What about the money taken in custodial legis? Can it
be recovered? Or should it remain in custoia legis? If it is
the proceeds of illegal transaction, can you recover
through writ of replevin?
YES. Because money per se is not prohibited by law. it
is not a contraband. If it is established that it is illegally
seized, then the owner has the right to recover it.
Kwin transcripts Page 133
 CONSTITUTIONAL LAW
EXCEPTION TO SEARCH WARRANTS - WARRANTLESS ARREST
GR: any arrest should be with a warrant
OW: arrest is unreasonable, therefore unconstitutional
EXPT: falls under valid warrantless arrest
-rule 113 of Rules of Court
1. in flagrante delicto
2. hot pursuit
3. person subject to the arrest is a bugante
1. IN FLAGRANTE DELICTO
WHEN IN FLAGRANTE DELICTO
When the person arrested
a. was committing
b. is about
c. has committed
a crime in the presence of the arresting officer.
CONTINUING OFFENSE
The only thing you should take note is the nature of the
offense charged like if it is continuing or not.
If it is continuing like rebellion, then even if the policeman
who arrested the accused did not actually witness the
commission of acts of rebellion, can make an arrest without
a warrant because rebellion by nature is continuing offense.
Human trafficking is continuing offense.
Because of the nature of the offense, it would be as if the
crime is committed in the presence of the arresting officer.
Case: Ladlad Veltran et al vs Gonzalez, June 1, 2007
This has something to do with the arrest of Veltran who
was charged with rebellion. He was arrested without a
arrant based on an affidavit of witnesses that he was
committing rebellion.
Immediately after the arrest, he was brought to the
prosecutor’s office for an inquest so that a case can be filed
against him in court.
He then challenged the validity of inquest because he was
saying that he was not validly arrested. Because he was
arrested without a warrant and he was not committing a
crime at the time of his arrest.
Kwin
was illegal, that makes the inquest illegal and therefore as a
consequence the information filed was invalid and the case
was dismissed.
SC says, inquest proceedings are proper only when the
accused has been lawfully arrested without a warrant.
IN PRESENCE OF THE ARRESTING OFFICER
Case: People vs Padilla
When we say in the presence of arresting officer, it is not
necessary to be in the physical presence. It could be only at
hearing distance.
2. HOT PURSUIT
NEED NOT BE PRESENGT AT THE TIME OF THE COMMISSION
OF THE CRIME
The difference between the first and the second exception
was that the arresting officer was not present at the time of
the commission of the crime.
REQUIREMENTS:
1. personal knowledge of the facts indicating that the person
arrested must have committed the crime
2. from the time of the commission of the crime to the
actual apprehension of the suspect, it must be CONTINUOUS
No supervening event that breaks the continuity of the
chase. OW should there be an interruption, that could no
longer be justified under the exception of hot pursuit.
Case: People vs del Rosario
SC said there must be a lodged measure of immediacy
between the time the offense was committed and the time
of the warrantless arrest.
If there is an appreciable time of the arrest and the
commission of the crime, a warrant of arrest must be
secured.

TN in order to conduct a valid inquest, it must be based on

valid warrantless arrest. You cannot have a valid inquest
conducted by the fiscal to determine probable cause for the
purpose of filing a case in court if it preceded by an illegal
invalid warrantless arrest.
So if the arrest is illegal then that would make the inquest
illegal, and consequently, the information filed in court is
likewise invalid.

So in the case of Veltran, he was saying that he was not

committing a crime and the persons who arrested him had
no probable cause to arrest him without a warrant because
in fat there was no rebellion committed by him.
He was sustained by the SC. Because the warrantless arrest

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 CONSTITUTIONAL LAW
APPLIED ONLY AGAINST LAW ENFORCERS, NOT PRIVATE
INDIVIDUALS
Right against unlawful searches and seizure may be applied
only against law enforces, not private individuals.
We have cases like when they have a tenant on the hotel,
who did not anymore pay his bills. And when the manager
checked his room, they found contraband. So they called the
NBI to make an investigation. They were able to know the
identity of the tenant. Then the tenant was sued using the
contraband that was recovered in his room.
The question there is, if there was no search and seizure
warrant in the seizure of the contraband that was found
inside the room of the tenant, is that admissible in the
evidence?
If it was NBI who seized it, then definitely, it will not be
admissible because there is no probable cause to believe
that he was committing a crime inside.
But in this particular case, the one who found it was a
private individual, the manager of the hotel. It was merely
turned over to thee NBI.
In which case, you cannot use this against a private
individual. This can only be enforced against law enforcers.
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Kwin
REMEDY FOR ILLEGAL ARREST
REMEDY BEFORE FILING OF THE CASE
What would be the remedy if you are illegally arrested?
You can apply for a writ of amparo or a writ of habeas
corpus. You file for a writ of habeas corpus before the case is
filed in court.
EFFECT OF FILNG OF THE CASE ON THE ISSUE OF THE
LEGALITY OF ARREST AND DETENTION
The moment that case is filed in court and a warrant of
arrest is issued, this will ratify illegal arrest and detention,
because there is basis to further detain you because the
case has already been filed in court and a warrant of arrest
has already been issued.
IOW the legality arrest as soon as the case is filed in court
shall become moot and academic. And that would lead to
the dismissal of the habeas corpus. But not to the writ of
amparo.
EFFECT OF FILING OF CASE ON APPLICATION FOR WRIT OF
AMPARO
The writ of amparo may continue even after the filing of
the case in court. Because this can be availed of by any
person whose right to life, liberty or security is violated or
threatened, even after the filing of the case in court.
EFFECT OF FILING OF CASE ON APPLICATION FOR WRIT OF
HABEAS CORPUS
In habeas corpus, the only issue there is physical liberty;
WON the arrest and detention is illegal. So the moment
charges are filed in court, the illegality of the arrest is cured.
That makes your detention legitimate because now there is
a case is filed in court.
REMEDY AFTER FILING OF CASE
What is your remedy the moment the case is filed in court, if
you cannot avail of the writ of habeas corpus and the writ of
amparo?
You should not allow yourself to be arraigned. Move for the
quashal of the information for it is invalid. There was no
basis for the arrest. You did not commit any crime.
EFFECT IF YOU ALLOW YOURSELF TO BE ARRAIGNED
If you allow yourself to be arraigned without moving for the
quashal of the information, what would that mean?
It would mean that you have waived your right to question
the legality of the arrest and detention. You should have
done that before arraignment.
POSTING OF BAIL – NOT A WAIVER OF RIGHT TO QUESTION
Is your posting of bail a waiver of your right to question the
validity of your arrest?
NO. (New rules of court) You are never precluded from
questioning the validity of your arrest, notwithstanding your
posting for bail.
Kwin transcripts Page 135
 CONSTITUTIONAL LAW
ADMINISTRATIVE ARREST (!!!)
You can be arrested administratively without a warrant.
Try to go to court and shout. You will be cited in contempt
and the court will order your arrest without a warrant.
Try to roam around in Colon without pants. You may be
arrested without a warrant.
CAUSES: BREACH OF PEACE; ONLY WHEN NECESSARY
Usually the causes for administrative arrest, if you breach
peace or if you are planning to do so, you can be arrested
but only if it is necessary.
WHEN FREED
You will be freed as soon as you no longer represent a
threat to public security.
EXAMPLES
-if you destruct a court hearing,
-if you are in a drunken state on the public highway,
-if you block traffic without authorization,
-if you refuse to give your ID documents or if these are
questionable
-if you are in the country illegally
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Kwin
SEC 3 – PRIVACY OF COMMUNICATION AND
CORRESPONDENCE
SECTION 3.
(1) The privacy of communication and correspondence shall be inviolable
except upon lawful order of the court, or when public safety or order
requires otherwise, as prescribed by law.
(2) Any evidence obtained in violation of this or the preceding SECTION shall
be inadmissible for any purpose in any proceeding.
WHEN THE RIGHT MAY BE INTRUDED UPON BY THE STATE
1. when there is lawful order from the court
2. when public safety requires OW
COVERAGE
This includes electronic communications through cellphones,
emails and internet.
HOW TO APPLY FOR ORDER OF THE COURT
It is like applying for a search warrant.
The only problem in the application for search warrant is that
you have to particularly describe the communication that
you would want to disclose or barred so that you will be able
to sue the person who is harassing.
You can only make an estimation or approximation of what
could be the content of the communication as basis for your
application of search warrant to comply with particularity of
the things that could be the subject of the search and
seizure.
LETTERS FORM PRISONERS AND DETAINEES – DIMINISHED
RIGHTS
Letters coming from prisoners or detainees in jail, are they
protected by the privacy in communication and
correspondence? Meaning before any letter would be sent
out, is it possible that the letter should not be opened and
read by the jail guards and officers?
Case: Trillanes vs Gabuway
This was the issue in the petition for habeas corpus filed by
Alejano et all.
The letters of these coup d’ etat detainees, they sent it
through their lawyers as their postman/ courier. But before
the lawyer could bring them out, from jail, they were
opened and read. And thus they invoked privacy of
communication and correspondence.
SC said that inasmuch as the letters brought out by the
lawyer is not privilege communication between the
detainees and the lawyer who was bringing the letters, then
it is not covered the privacy of communication and
correspondence.
According to the SC, insofar as the detainee is concerned,
the right to privacy is limited by law.
We have law relating to that, RA 7438, where the SC said
that the right to privacy of those detained is subject to sec 4
RA 7438 as well as to limitations inherent to lawful
detention or imprisonment.
By the very fact of their detention, retrial detainees and
Kwin transcripts Page 136
 CONSTITUTIONAL LAW
Kwin
convicted prisoners have a diminished expectations of WHO DETERMINES:
privacy rights. EXCEPTION 1 – LAWFUL PRDER OF THE COURT
It is the court that determined.
Telephone conversation between the detainees and the
outside communicators are even being taped just to protect EXCEPTION 2 – PUBLIC SAFETY REQUIRES
the public safety and security of the jail. It is the president who determines. Which power may be
You cannot therefore invoke the privacy of communication delegated by the president to the law enforces. Or you have
and correspondence because you do not have the same those laws like RA 4200 and RA 9372.
privilege as the people at large who are free.

TAPING OF PRIVATE CONVERSATIONS

ANTI WIRETAPPING ACT RA 4200
Case of Hello Garci.

EXTENT OF PROTECTION
What is the extent of protection as far as privacy of
communication that your conversation in telephone call
cannot be taped or bugged. That is the general rule.
So that if it is bugged or taped, what ever information
taken from it is inadmissible from evidence because there is
a violation of the privacy from communication.

TAKEN FROM EXTENSION LINES

However if it was taken from an extension line where there
was no expectation of privacy, it is admissible, because this
is only between regular lines, not extension lines of
telephone units.

OTHER PROHIBITED ACTS IN RA 4200

1. distribution of transcriptions
2. replay of conversation

EXCEPTIONS
1. HUMAN SECURITY ACT – RA 9372
If it involves public safety, public security or public
interest, in which case, you may ask for the bugging of the
conversation.
This allows the bugging of conversation between a
suspected terrorist.

SEC. 7. Surveillance of Suspects and Interception and Recording of

Communications. -The provisions of Republic Act No. 4200 (Anti-Wire
Tapping Law) to the contrary notwithstanding, a police or law
enforcement official and the members of his team may, upon a written
order of the Court of Appeals, listen to, intercept and record, with the
use of any mode, form, kind or type of electronic or other surveillance
equipment or intercepting and tracking devices, or with the use of any
other suitable ways and means for that purpose, any communication,
message, conversation, discussion, or spoken or written words between
members of a judicially declared and outlawed terrorist organization,
association, or group of persons or of any person charged with or
suspected of the crime of terrorism or conspiracy to commit terrorism.
Provided, That surveillance, interception and recording of
communications between lawyers and clients, doctors and patients,
journalists and their sources and confidential business correspondence
shall not be authorized. (THESE ARE PRIVILEGED
COMMUNICATIONS)

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 CONSTITUTIONAL LAW
SEC 4 – FREEDOM OF EXPRESSION
SECTION 4. No law shall be passed abridging the freedom of speech, of
expression, or of the press, or the right of the people peaceably to assemble
and petition the government for redress of grievances.
COVERAGE
1. FREEDOM OF SPEECH
2. FREEDOM OF PRESS
3. FREEDOM OF ASSEMBLY AND PETITION THE GOVERNMENT
FOR REDRESS AND GRIEVANCES
1. FREEDOM OF SPEECH
WHAT KIND OF SPEECH
You have COMMERCIAL SPEECH included in the freedom of
speech.
And it is not limited to oral utterances. It also includes
anything that is communicative in nature.
Like picketing, if you walk to and fro with your placard, that
is part of your freedom of speech protected under the law.
GR, you can say anything as long as it is not libelous,
seditious, violent or contrary to law. Same with the freedom
of press and other freedom of expression.
COROLLARY RIGHTS:
1. FREEDOM FROM PRIOR RESTRAINT AND CENSURESHIP
2. FREEDOM FROM SUBSEQUENT LIABILITIES
-in determining liability, we have three tests:
a. clear and present danger test
b. dangerous tendency rule
c. balancing of interest
LIMITATIONS ON THE EXERCISE OF THE POWERS
1. challenging the validity of the law
Laws that may limit or intrude into the freedom of
expression can be challenged on its face for reasons of:
a. void for vagueness doctrine
b. over breadth doctrine
These doctrines may only be applied on your freedom of
expression. In fact you can challenge the constitutionality
of that law mainly on the basis of the tenor of the law
without necessarily applying that to your case.
Remember the two ways that you may question the
constitutionality of a law:
a. on its face/ facial challenge
b. as applied to case
And usually in the freedom of expression, laws affecting
or intruding into your freedom of expression may be
challenged on to grounds, over breadth or that it is vague.
OVERBREADTH practically covering, there is no
limitations now as to the intrusions. Practically, it is being
regulated by the state.
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VAGUE however means it is not clear. It is the opposite
of the overbreadth.
Either way, this would be violative of the DUE PROCESS
OF LAW, and in which case, it can be challenged in its face.
2. regulations of speech: content base/content neutral
In the determination of the limitations like the prior
restraint or censorship, TN of these two regulations of
freedom of expression in general:
a. content base regulations
b. content neutral regulations
The regulation of speech would either be based on the
content of the speech itself or the surrounding
circumstances when you deliver the speech.
The regulation may be CONTENT BASED subject of the
speech or utterance is sought to be regulated.
CONTENT NEUTRAL if it regulates only the conduct
associated with speech such as the time and place and
manner.
Any CONTENT BASED regulation must show that the
government has a compelling or overriding interest in the
subject regulation in order to regulate the content of your
speech.
It could be:
a. public safety
b. national security
c. public morals
d. public policy
CONTENT NEUTRAL restriction OTOH need only show an
important government interest. As long as it leaves open
alternative channels of communication.
IOW CONTENT BASED may only be regulated when there
is compelling state interest involved. The government is
strict. They would use CLEAR AND PRESENT DANGER RULE.
CONTENT NEUTRAL regulation, even if there is a small
interest of the government, for as long as it can show that
there is government interest, then it can already be
regulated.
Like when it causes traffic, then you would have to be
transferred to another place.
Kwin transcripts Page 138
 CONSTITUTIONAL LAW
Case: Chavez vs Secretary of Justice Gonzales, Feb 15,
2008
In the Hello Garci controversy, Gonzalez was threatening
the broadcasting radio stations that they will be closed by
NTC and they will be sued if they will continue replaying.
IOW the regulation is specific as it goes into the content of
the speech that he wants to be restricted.
SC said, the acts of the secretary and the National
Telecommunication Commission in warning stations aginst
playing the Hello Garci tapes under pain of revocation of
their licenses were content based restrictions ad should be
subjected to the clear and present danger test.
TEST IN DETEMINING SUBSEQUENT LIABILITIES
IOW we have three tests in determining subsequent
liabilities:
a. clear and present danger test
b. dangerous tendency rule
c. balancing of interest
COMMERCIAL SPEECH
What kind of speech that may be regulated by the state?
We are referring to advertisements.
When can that be regulated?
When you can show that the state has governmental
interest in the advertisement.
As long as:
a. fraudulent
b. propose an illegal transaction
c. obscene,
then the government may regulate
Example: “Nakatikim ka nab a ng kinse anyos?”
This seems to be proposal of illegal transaction but tasting
a 15 year old girl holding a liquor in the billboard.
STRICT SCRUTINY TEST/ O’BRIAN TEST
The use of the STRICT SCRUTINY TEST or the O’BRIAN TEST
lies in the government to prove that indeed there is a
compelling reason to intrude into the freedom of
expression.
HECKLER’S VETO (!!!)
If you deliver a speech and somebody booed you, in order to
maintain peace and order, you may be stopped from
continuing the delivery of your speech to veto the hecklers.
It occurs when acting party’s right to freedom of speech is
restricted by the government in order to prevent a reacting
party’s behavior.
A common example is when the demonstrator causing a
speech given by the acting party to be terminated to be
terminated in order to preserve the speech.
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2. FREEDOM OF PRESS
COROLLARY RIGHTS:
1. FREEDOM FROM PRIOR RESTRAINT OR CENSURESHIP
2. FREEDOM FROM SUBSEQUENT LIABILITY
3. FREEDOM OF SOURCE OF INFORMATION
4. FREEDOM NOT TO DISCLOSE THAT INFORMATION
5. FREEDOM OF CIRCULATION AND PUBLICATION
1. FREEDOM FROM PRIOR RESTRAINT OR CENSURESHIP
ROLE OF THE MTRCB
-LIMITED TO CLASSIFYING THE AUDIENCE
Freedom of press is not limited only on TV and
broadcasting but also on movies and films.
And you have the MTRCB, an agency of the government
regulating these agencies of the press on the purpose of
classifying the audience.
It is a set of rules now that insofar as MTRCB is concerned,
remember that theirs is only to classify. It is not for them to
delete or censure any material that is obscene because that
is a judicial function.
-NO POWER OVER TV PERSONALITY
MTRCB has no power over the TV personality or eh actor.
They only have supervision and control over the program,
not the personality.
For example, if a TV host misbehaves, they cannot
discipline them. Only the program hosted by this personality
that can be subjected to disciplinary action by MTRCB.
And that is the reason why to prevent MTRCB to punish the
suspending the program by suspending its showing because
that would cause loss of money, they would preempt that by
suspending the host instead.
Case: Soriano vs Laguardia
And Dating Daan, where he was also included from the
suspension, aside from Ang Dating Daan for making
statements that are obscene.
SC nullified insofar as disciplining the host of Ang Dating
Daan. Only the program that was suspended was sustained
by SC.
SC said that Soriano’s statement can be treated as obscene
at least with respect to the average child. And thus his
utterances cannot be considered as protected speech.
However, the MTRCB’s suspension is limited only to the
show, Ang Dating Daan, not Soriano, as the MTRCB may not
suspend TV personalities, for such would be beyond his
jurisdiction.
Kwin transcripts Page 139
 CONSTITUTIONAL LAW
-DETERMINATION OF OBSCENITY
Again, on the determination of obscenity, that is a judicial
function. And the guidelines for that, is in the case of;
Case: Kapit sa Patalim
Anything that caters to the basic or animal instincts of a
man or sexual interest of man.
No scientific or cultural value, but purely for sex, then that
is protected by law. It can be regulated, if not, whoever is
responsible for it can be punished.
There is no guaranty of protection of subsequent liability
there.
MAKING COMMENTS ON ACTS OF PUBLIC INDIVIDUALS
GR: NO LIABILITY
Case: US vs Gustos
For as long as the comment is fair and honest, there is no
liability. Good faith is a defense of in libel cases against
public officers.
EXPT: AGAINST JUDICIARY
1. LOWER COURTS – CLEAR AND PRESENT DANGER
2. SUPEREME COURT – DANGEROUS TENDENCY
Case: Borja vs CA
However, if it is a comment against judiciary, it is a
different story. You can be cited for contempt for subjudicy?
or for violation of the integrity of the court.
TN that in proving the liability, it is required that you are
cited in contempt by a lower court. There is proof of guilt
beyond reasonable doubt.
By clear and present danger that in your speech, there is a
possibility that you erode the trust and confidence in the
lower courts, then you can be held liable for contempt.
But if it is the SC that you attacked and criticized, all that it
needs is dangerous tendency rule. As long as there is a
tendency that you will erode the people’s trust and
confidence in the SC, you can be cited for contempt and
punished for it.
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3. FREEDOM OF ASSEMBLY AND PETITION THE
GOVERNMENT FOR REDRESS AND GRIEVANCES (!!!)
PERMIT
Do you need a permit?
If you use a PRIVATE PLACE, you don’t have to.
If you use a PUBLIC PLACE, it is for the purpose of
regulating use of the public place as to time, place and
manner of the assembly.
TESTS IN GRANT OF USE OF PUBLIC PLACE
1. PURPOSE TEST
2. OSFEASES? TEST
In the grant of permit to use a public place, who are the
organizations organizing the assembly? – all these are
taken into consideration.
Only when there is CLEAR AND PRESENT DANGER that in
by allowing you to use that public place, you will be causing
danger to public safety or national security or public
convenience, then that can be regulated by the LGU
concerned, where you are applying to use a permit for a
public place.
It is not per se that your exercise to your freedom of
assembly but the use of a public place.
BP 880 - ASSEMBLY ACT
You read this in connection with the case of:
Case: Bayan vs Ermita
Case: Reyes vs Bagatsing
This tests the extent of your enjoyment of freedom of
assembly, which was later institutionalized into a law such as
BP 880.
-PERMIT NEEDED ONLY WHEN USE PUBLIC PLACE
Here, it is emphasized that you do not have to ask for a
permit to assemble. However, to use a public place, you
need a permit from the LGU concerned.
-WHEN PERMIT IS NOT NEEDED FOR PUBLIC PLACE
1. PRIVATELY OWNED PLACE
The exception to this is that you don’t need a permit when
you use a public place from the government to use that
place, even if it public, however it is private.
Example: the EDSA shrine. It is a private place, it is owned
by the archbishop of Manila.
2. FREEDOM PARK
Another exception is the Freedom Park. There has to be a
declaration of a Freedom Park by the LGU. You can use it
without need of a permit.
In Cebu, Fuente Osmena is the freedom park.
3. CAMPUS OF A STATE UNIVERSITY
Example. Abellana. But you need a permit from the
administrator of Abellana.
Kwin transcripts Page 140
 CONSTITUTIONAL LAW
-ACTIONS TAKEN BY LGU
On the actions that may be taken by LGU in connection
with BP 880, on your application to your permit…
1. GRANT OF USE OF PUBLIC PLACE
In connection to that, what is the prevailing principle in
granting you to use a public place for a public rally?
It is still MAXIMUM TOLERANCE. The preemptive response
has been abolished. What is now prevailing is that, as long as
it is not tumultuous, you should be allowed freely to meet
with your friends and country men to discuss matters of
public concern in a public rally.
You should not be stooped unless there is a CLEAR AND
PRESENT DANGER against public safety.
2. CHANGE OF VENUE
Case: IPB vs Atienza, Feb 24, 2010
This has reference to the asking for a permit from the
mayor of Manila to use Mendiola Bridge as their rallying
point. While they were allowed to hold the rally, however
the place was changed. IBP was never informed of the
change of venue.
SC said Mayor Atienza gravely abused his discretion when
he did not immediately inform the IBP which should have
been heard first on the matter of his perceived imminent
and grave danger of the substantive evil that may warrant
the changing of the venue under BP 880, the Public
Assembly Act.
It is found that Atienza failed to indicate how he had
arrived in modifying the terms of the permit against the
standard of clear and present danger test, which is as
indispensible condition to such modification.
Nothing in the issued permit adverts to an imminent and
grave danger of a substantive evil which blunt denial or
modification would have granted imprimatur as the
appellate court would have it granted any judicial scrutiny
thereto.
So if there is a change of venue, then the applicant shal
have to be informed pursuant to BP 880.
Kwin
SEC 5 – FREEDOM OF RELIGION
SECTION 5. No law shall be made respecting an establishment of religion, or
prohibiting the free exercise thereof. The free exercise and enjoyment of
religious profession and worship, without discrimination or preference,
shall forever be allowed. No religious test shall be required for the exercise
of civil or political rights.
PROHIBITIONS
1. NON ESTABLISHMENT OF RELIGION
2. FREEDOM OF RELIGION
3. NO RELIGIOUS TESTS
1. NON ESTABLISHMENT OF RELIGION
STATE HAS NO RELIGION
Simply put, the state has no religion. And so the state must
not favor any religion. And this does not mean also
discriminating against any religion or becoming hostile to
any religion.
HOW STATE REMAINS NEUTRAL
For the state to be neutral in the midst on many religions:
1. state must not use any public funds for the support of any
religion, religious sect, priests or any other ecclesiastical
ministers
The only exception to this is when public funds are used
for priests working at:
a. AFP
b. penal institution
c. government owned orphanages
d. charitable institutions
And thus the issue on the alleged donation of Pajeros
and other SUV’s to the bishops who requested for vehicles.
They are saying that it is justified in asking because it is not
for personal use of the priest but they are using it for
charitable purposes.
But if it is in the name of the bishop then that would be
difficult to defend. You are not supposedly to use the public
funds for the purpose.
If it would be in the name of the charitable organization,
it would be alright, however being used by the bishop.

Kwin transcripts Page 141

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 CONSTITUTIONAL LAW
EXCEPTIONS TO THE NON ESTABLISHMENT OF RELIGION
1. optional religious instructions in public, elementary and
high school
-requisites:
a. consent of the parent or the guardian
b. no additional expense to government
c. done during school hours
d. by an accredited or recognized teacher in that religion
2. on grant of tax exemptions to real property taxes
-requisites
a. actually, directly and exclusively used for religious
purpose
b. limited on real property
3. educational institutions
-requisites
a. by religious groups or mission boards
4. compensation for priests assigned in:
a. AFP
b. penal institution
c. government owned orphanages
d. charitable institutions
TWO TESTS
If funds are used by the government and the church is
benefited, take note of the tests:
1. DOES IT ADVANCE RELIGION?
-the purpose is purely non secular
What is non secular? It means not religious at all.
And if the religion or church benefited is merely
incidental because the purpose is non secular.
2. DOES IT INHIBIT RELIGION?
-it is not entangling with religion
It has to be prohibited; being intimate with the religion
or the church.
Go over these tests because in man instances, donations are
given to catholic schools to improve their education. And
instead the funds are used for the teaching of religion or the
subject of chemistry however incidentally, it is a religious
school.
It depends on the circumstances in the giving of the funds or
if not, in passing the law or policy, that may benefit the
religion or benefit the church.
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2. FREEDOM OF RELIGION
PREVAILING PRINCIPLE: BENEVOLENT NEUTRAL
ACCOMODATION
Case: Estrada vs Escritor
BENEVOLENT NEUTRAL ACCOMMODATION. For as long as
there is no compelling state interest, there is a freedom to
enjoy the freedom of religion.
For as long as there is no public interest that is prejudiced,
you are allowed to freely exercise your freedom of religion.
In the case of Escritor, that even morality is based on
religion. That is now acceptable.
Case: Ibralina
This was a reversal of the decision of the Herona case.
The saluting of the flag is no longer a ground for expulsion
of pupils from the school because there is NO COMPELLING
STATE INTEREST, and there is NO CLEAR AND PRESENT
DANGER of a substantive evil to happen.
Case: Iglesia ni Cristo vs CA
This relates to the Classifying X; they have a TV program
criticizing Roman Catholic Religion. It was rated X by MTRCB.
Iglesia brought it up all the way to SC.
SC said it should not be classified as X because there is no
clear and present danger that there will be war between
these two religions.
So it was declared unconstitutional by SC.
Case: Ladlad vs Comelec, April 8, 2008
Ladlad was being accredited in being a party list. One of the
reasons why SC considered Ladlad was art 3 sec 5 of the
constitution.
SC stressed that no law shall be made restricting the
establishment of religion or prohibiting the free exercise
thereof. Thus it found a grave violation of the non
establishment clause for the Comelec to utilize the bible and
Koran to justify the exclusion of Ladlad.
SC held that moral disapproval is insufficient.
Governmental interest to justify the exclusion of
homosexuals from participation in party list systems.
Upholding and protection, the court ruled that from the
standpoint of political process, Ladlad have the same
interest in participating the party list system on the same
basis on the same basis as other political parties similarly
situated.
As such, laws of general application should apply with
equal force to LGBT’s and that they deserve to participate in
the party list system on the same basis as other marginalized
and under represented sectors.
The court finds that there was transgression of Ang
Ladlad’s fundamental right of freedom of expression since
by reason of the Comelec’s action, the former was precluded
from publicly expressing its views as a political party
participating in an equal basis in the political process with
other party list candidates.
Kwin transcripts Page 142
 CONSTITUTIONAL LAW
Case: Estrada ve Escritor
She was not declared immoral as it was accepted by her
religion, in living with a married man while she herself is
married, so long as they have pledge of love.
Morality there is based in religion; but not Ang Ladlad.
NON INTERFERENCE OF EACH OTHER’S FUNCTIONS OR ITS
AFFAIRS
-INTRAMURAL CONFLICTS
INTRAMURAL CONFLICTS between the church or members
of the church should not be interfered with by the state.
Unless it violates the established rules or laws of the
country, in which case that the court will take cognizance of
the conflict.
This is relevant because of the controversy of RH Bill and
the pending bill for the adoption of divorce in the country.
And this has been opposed by the religion.
WHO SHOULD BE EXPELLED OR EXCOMMUNICATED FROM
THE CHURCH
In the matter of who should be expelled or excommunicated
from the church, that is the discretion of the church.
Can you appeal that in the courts?
Certainly not.
3. NO RELIGIOUS TESTS
This simply means that religion is not a qualification in order
for one to exercise his civil and political rights.
PROHIBITION ONLY AGAINST THE STATE
This prohibition however is addressed only against the state,
not against private entities.
IOW if ISC will require religion to graduate from a course in
college, you cannot say that there is violation of religious
state because USC is a private entity.
But if UP requires religion then that would be a violation of
no religious test as well as the non establishment of religion.
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SEC 6 – LIBERTY OF ABODE AND RIGHT TO TRAVEL
SECTION 6. The liberty of abode and of changing the same within the limits
prescribed by law shall not be impaired except upon lawful order of the
court. Neither shall the right to travel be impaired except in the interest of
national security, public safety, or public health, as may be provided by law.
LIMITATIONS
There’s a difference between these two in terms of
limitations.
LIBERTY OF ABODE is the right to choose where you want to
live and change the same within the limits prescribed by law.
The limitations being only LAWFUL ORDER OF THE COURT.
So therefore, you cannot be limited by chief of the PNP who
wants to relocate you. You cannot be compelled by anyone
except by the lawful order of the court. But an alternative
answer to it is, yes, by the exercise of police power.
On the RIGHT TO TRAVEL, the limitations are:
1. public safety
2. public health
3. national security
4. court order
COURT RESTRICTION ON THE RIGHT TO TRAVEL
Can the court limit your right to travel, especially if you are
facing charges in court?
YES. So as not to render the administration of justice
inutile. Specially when you have posted bail because you
have made an undertaking that you will be available before
the court anytime you are asked to appear.
Case: Manolo vs CA (right to travel)
Case: Santiago vs Vasquez (right to travel)
Case: Villavicencio vs Lucban (liberty of abode)
The prostitutes were deported in Davao. They don’t want
to live in Davao because they have the right to chose where
they want to live. This was sustained by SC.
Case: Quenca vs Salazar
This is about helpers.
Case: Sylverio vs CA
Kwin transcripts Page 143
 CONSTITUTIONAL LAW
RIGHT TO RETURN TO COUNTRY
Another point you have to TN on the right to travel, the right
to return to country is not covered in the right to travel.
Case: Marcos vs Mallacos
The right to travel in this particular provision of law does
not include the right to return to the country.
So then what is the basis of the application of the ruling
relating to the Marcoses allowing them to return to the
country?
You gave the Generally Accepted Principles of International
Law, which under the incorporation clause is deemed
automatically part of the legal system:
a. art 13 – the universal declaration of human rights
b. art 12 – covenant of civil and political rights.
Under art 13 par 2 of the universal declaration of human
rights, it provides that everyone has the right to live in any
country, including his own and to return to his country.
So even if there is no provision relating to that in the Bill of
Rights, you can still be allowed as part of this human right.
Art 12 on the Civil and Political Rights provides that no one
should be arbitrarily deprived of the right to enter his own
country.
Those are the two provisions justifying anyone to enter into
the Philippines, even if it is not guaranteed in the right to
travel.
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SEC 7 – RIGHT TO INFORMATION ON MATTERS OF PUBLIC
CONCERN
SECTION 7. The right of the people to information on matters of public
concern shall be recognized. Access to official records, and to documents
and papers pertaining to official acts, transactions, or decisions, as well as
to government research data used as basis for policy development, shall be
afforded the citizen, subject to such limitations as may be provided by law.
INFORMATION NOT COVERED
Government transactions
On going government transactions
Those negotiations through treaties and agreements
This is a political right, therefore, it is available only to the
citizens of the country.
RIGHTS COVERED
But not all information, although concerns the public are
available to the public.
There are two rights involved in this section:
1. RIGHT TO INFORMATION
2. RIGHT TO ACCESS THE INFORMATION
LIMITATIONS
The right to information is a right guaranteed of protection
under this law.
However the access is limited by the government; subject to
such limitations as may be provided by law.
Example, time and manner and place where you can access
information; and the fees you pay for the copies of these
informations.
IOW you may have the access but it doesn’t mean you will be
given free copies of the information.
ON GOING NEGOTIATIONS OF GOVERNMENT OF
GOVERNMENT TRANSACTIONS
On going negotiations of government of government
transactions are not accessible to the public as a matter of
right.
Case: Chavez vs Public Estate Authority
If there is a question on how this money bills regarding on
the transactions of reclaimed lands.
SC said the constitutional right to information includes
information on on going negotiations before the final
contract is consummated.
The information however must constitute (TN of this
qualification!!!) definite propositions by the government
and should not cover recognized exceptions like:
a. privilege communication
b. military and diplomatic secrets
c. similar matters affecting the national security and public
order
Kwin transcripts Page 144
 CONSTITUTIONAL LAW
Kwin
MATTERS THAT CANOT BE DISCLOSED SEC 8 – RIGHT TO FORM UNIONS, ASSOCIATIONS AND
1. PRIVILEGE COMMUNICATION SOCIATIES
2. MILITARY AND DIPLOMATIC SECRETS SECTION 8. The right of the people, including those employed in the public
and private sectors, to form unions, associations, or societies for purposes
not contrary to law shall not be abridged.
3. TREATY NEGOTIATIONS
What about treaty negotiations? Can they be disclosed as
accessible to the public? RIGHT OF THE PEOPLE IN GOVERNMENT
NO. -HAS RIGHT TO FORM OR JOIN UNIONS
The right of the people in government to form or join unions
Case: Akbayan vs Aquino is recognized. This includes the right not to be compelled to
The Jepepa controversy, SC emphasized that it has been BY join any organization.
TRADITION, treaty negotiations are confidential in nature. It
is part of the president’s executive privilege and the -PROHIBITED FROM ENGAGING IN STRIKES
president s never compelled to disclose information However, TN for government employees forming unions, they
pertaining to treaty negotiations. That is by nature are prohibited from engaging into certain activities, like to
confidential. strike.
While the constitution is silent; unless OW provided by law,
4. MATTERS OF NATIONAL SECURITY there is a law prohibiting government employees engaging
in strike, under a Civil Service Rule as well as an executive
5. INTELIGENT INFORMATIONS order issued by the president.
These are raw information from law enforcement
investigation.
RIGHT TO FORM ASSOCIATION – APPLY ONLY TO
6. TRADE SECRETS GOVERNMENT
Another point you should TN in the right to form associations
7. BANKING TRANSACTIONS UNDER BANK SECRECY LAW is that it applies only to government. This does not apply to
Except when: private organization.
a. involved in money laundering For example, being compelled to be a member of a
b. there are already cases like plunder case filed by subdivision, or home owners association. It is not included
ombudsman because it is not government that requires it. It is part of the
cumbrance of the property that you are intending to buy.
Case: Lopel And the moment you buy it, it is understood that you
There should be a case filed already in court and the consented that you abide by the rules that would include of
information is relevant to the case. your being a member of the home owner’s association. In
In which case, there is an exception to the banking which case, you cannot say that your right is violated there.
transaction kept as secret.

8. DIPLOMATIC CORRESPONDENCE

9. EXECUTIVE SESSIONS
Sessions being held to the exclusion of the media by the
congress for example in a legislative inquiry or investigation,
or closed door cabinet deliberations.

10. SC DELIBERATIONS

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 CONSTITUTIONAL LAW
NOT INCLUDED IN THE FREEDOM OF ASSOCIATION
1. ENJOINING OF ASSOCIATION
On the prohibition or the limitations enjoining an
association. You cannot invoke a violation of this right.
2. RIGHT TO BE GIVEN PERSONALITY BY SEC
Does this forming of association include the right to be
given personality by SEC?
NO. It does not form an integral part of your freedom of
association.
3. RIGHT TO STRIKE
Just like the freedom of association does not include the
right to strike.
4. OWNERSHIP OF THE PROPERTY
If ownership of the property denied for an organization to
acquire it, there is no violation because the acquisition of
property does not form part of right to association.
5. POLITICAL PARTY’S PARTICPATION IN BARANGAY ELECTION
How about political parties, the purpose of which is to
participate in election; when there is prohibition on them
from participating in barangay election, would there be a
violation on the right to association?
No. Because the justification there is police power. To allow
political parties will negate the purpose of allowing the
people from the grass roots to freely participate with equal
opportunities in getting a position. So that there will be
equal footing in the barangay in participating in electoral
process without the intervention of political parties.
ASSOCIATIONS AND INDIVIDUALS PROHIBITED FROM
FORMING UNIONS
There are certain associations or individuals however that are
prohibited from forming unions or organizations or
participating in organizations, such as:
1. SUCURITY GUARDS
For obvious reasons. They are dangerous when they are
armed when negotiating.
2. SUPERVISORS
They are prohibited from forming or joining a union
because there will be a conflict of interest. They are
supposed to represent the management as against the
labor.
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SEC 9 – EMINENT DOMAIN
We have already discussed this.
SEC 10 – NON IMPAIRMENT OF CONTRACTS
SECTION 10. No law impairing the obligation of contracts shall be passed.
Congress is prohibited from passing a law which would
change the terms and conditions of existing agreements that
would affect the rights and obligations of the parties with
respect to the contract.
NOT COVERED:
1. MARRIAGE CONTRACT
This does not cover marriage contracts because it is not an
ordinary contract.
We have discussed this when we discussed the limitations
on the right to life, liberty and property.
2. LICENSES
3. PUBLIC OFFICE
EXCEPTIONS:
The only exceptions to this where it can be impaired anytime
are:
1. POLICE POWER
2. EMINENT DOMAIN
3. TAXATION
4. WAIVER BY THE PARTIES OF THE CONTRACT
Stipulating that their terms and conditions are subject to
laws that may be passed in the future contrary to present
agreement.
5. FREEDOM OF RELIGION AS TO CLOSED SHOP AGREEMENT
As between freedom of religion and closed shop
agreement, freedom of religion prevails.
6. GOVERNMENT OR PUBLIC CONTRACTS
Such as contracts granted to individuals to engage in the
operations of public utility. It is congress that issues the
franchise. However, the constitution is very clear that this
is subject to amendment, repeal or modification.
So there is a reservation there by government.
REVOCATION INSOFAR AS EXERCISE OF TAXATION POWER
TN on the revocation insofar as exercise of taxation power,
especially on the GRANT OF TAX EXEMPTION.
You have to determine if it is for valuable consideration or if it
is out of the state’s generosity.
Because if it is ONEROUS, it cannot be revoked without
violating the non impairment clause.
SEC 11 and 12, we are going to discuss that on the rights of
the accused…
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 CONSTITUTIONAL LAW
SEC 20 – NON IMPRISONMENT FOR DEBT AND NON
PAYMENT OF POLL TAX
SECTION 20. No person shall be imprisoned for debt or non-payment of a
poll tax.
COVERED DEBTS
As long as the debt arises from a contractual obligation, not
for fines imposed by the state, not for commission of crime,
or civil liability from the commission of crime, you cannot be
imprisoned.
Kwin
July 11, 2011
LATE RECORDING
SEC 14 – RIGHT TO SPEEDY TRIAL
SECTION 16. All persons shall have the right to a speedy disposition of their
cases before all judicial, quasi-judicial, or administrative bodies.
If there is a delay in the conduct of preliminary investigation
for more than 3 years, that would amount to denial of due
process of law that would entitle the accused of the right to
the dismissal of the case.

RENTALS EFFECT OF DELAYED RESOLUTION

Rentals, can you be imprisoned for non payment of rentals?
NO.
Case: Guidorio
Debt as used in the constitution refers to civil debts or one
not arising from criminal offense. Clearly, the non payment
of rentals is covered by the constitutional guaranty against
imprisonment.
However in other cases in the courts where there is a delay in
the resolution of the case or the decision of the case, this
does not affect the validity of the decision notwithstanding
the delay.
The judgment or decision is valid. However without prejudice
to administrative liability on the part of the judge for the
delay.

That’s why they are saying that insofar as compliance with 3,

SEC 18 – RIGHT AGAINST INVOLUNTARY SERVITUDE
SECTION 18. (1) No person shall be detained solely by reason of his political
beliefs and aspirations.
(2) No involuntary servitude in any form shall exist except as a punishment
for a crime whereof the party shall have been duly convicted.
Involuntary servitude is likewise prohibited in art 272 of RPC.
12 and 24 months is concerned as required in the
constitution in the resolution of the case insofar as speedy
disposition, that is merely DIRECTORY in a sense that
judgment is still valid even if it is rendered after the lapse of
the period given.
However it is MANDATORY as regards to the judges and
justices because that could be a ground for disciplinary
action.

EXCEPTIONS
1. for punishment of a crime – forced labor
2. service in defense of the state
3. naval enlistment
4. principle of force commitatus, able bodied citizens of the
community may be compelled to render service for the
security of the community
5. return to work order from NLRC
Refusal could mean dismissal from service
6. on the basis of patea protestas of the discipline of
someone who is under 18 or under parental authority

WE ARE DONE WITH THE CIVIL LIBERTIES.

Next meeting, we focus on the right of the accused, before
during and after criminal prosecution

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 CONSTITUTIONAL LAW
SEC 12 - RIGHTS OF SUSPECTS WHILE IN CUSTODY
SECTION 12.
(1) Any person under investigation for the commission of an offense shall
have the right to be informed of his right to remain silent and to have
competent and independent counsel preferably of his own choice. If the
person cannot afford the services of counsel, he must be provided with one.
These rights cannot be waived except in writing and in the presence of
counsel.
(2) No torture, force, violence, threat, intimidation, or any other means
which vitiate the free will shall be used against him. Secret detention
places, solitary, incommunicado, or other similar forms of detention are
prohibited
(3) Any confession or admission obtained in violation of this or SECTION 17
hereof shall be inadmissible in evidence against him.
(4) The law shall provide for penal and civil sanctions for violations of this
SECTION as well as compensation to the rehabilitation of victims of torture
or similar practices, and their families.
RIGHTS OF SUSPECTS WHILE IN CUSTODY
This is with reference to a right of suspects while he is in
custody of law.
1. right not to be made to answer for any criminal offense
without due process
Due process being referred to here is both substantive
and procedural.
Substantive, meaning there has to be a law punishing the
act for which he is being charged. Because even if the act
complained of is immoral, it would not necessarily
constitute a crime unless there is a law defining it as a
crime.
On a procedural aspect, you have to go through the
procedure of due process that he is given a day in court
before the accused shall be indicted and ultimately be
made to answer for the charges.
2. MIRANDA RIGHTS OF THE ACCUSED
a. right to remain silent
b. right to be assisted with the competent and independent
counsel
Preferably of his own choice.
c. right to be informed that he has these rights
3. right not to be places in a solitary confinement
4. right against forced violence, intimidation and by means
that would vitiate his free will to be used against him that
will extract confession or admission
Person responsible for that can be held civilly, criminally
or administratively liable.
The victim for such violence and intimidation is entitled
to compensation and rehabilitation.
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Kwin
CUSTODIAL RIGHTS/MIRANDA RIGHTS
a. right to remain silent
b. right to be assisted with counsel
c. right to be informed that he has these rights
-WHAT CONSTITUTES CUSTODIAL INVESTIGATION
In order to understand these rights, first you must know what
would constitute a custodial investigations.
It is an investigation conducted by a law enforcer, like PNP,
FBI, CIDG, and other offices tat is tasked with the
enforcement of the law.
It must be done by the law enforcer immediately after the
accused is arrested, or he is in any way deprived of his
freedom of action.
-WHEN THERE IS A CUSTODIAL INVESTIGATION
There is custodial investigation already when the person is
arrested.
When you are invited merely for questioning related in the
crime under RA 7438, that is already considered as part of
the accused being placed in the custody of law.
-WHEN THERE IS NO CUSTODIAL INVESTIGATION
What is not covered by custodial investigation?
1. POLICE LINE UP
IOW custodial investigation has not yet commenced even
if the person is being placed in a temporary custody of law
for purposes of identification, he is PLACED IN A POLICE
LINE UP.
-POLICE LINE UP
A police line up as a general rule is not part of custodial
investigation yet. And for this reason, he is not entitled to
Miranda rights.
-WHEN SEIZE TO BE EXPLORATORY INVESTIGATION
Of course when we speak of police line up, it has to be
the accused placed in a line up of suspects, not just one
person placed in a line where he is made to be identified by
a witness; in which case, you zero in on him as the only
suspect in the commission of the crime. And the moment
that you have done that to the accused, the accused will be
entitled of his rights because it seizes now to be just an
exploratory investigation, now it starts as a custodial
investigation.
2. INVESTIGATION BY ADMINISTRATIVE OFFICES
Investigation conducted as well by administrative
government offices through their investigators are not c
covered by custodial investigation.
Custodial investigation usually covers criminal
investigation, not administrative investigation which may
be private or governmental administrative investigation.
Example. A COA audit examination where the accused
has made an admission. The admission is admissible in
Kwin transcripts Page 148
 CONSTITUTIONAL LAW
evidence even if at the time of his admission or confession,
he was not assisted with counsel because administrative
investigation is not covered by custodial investigation.
3. SPONTANEOUS STATEMENT
TN of the manner that the statement or admission or
confession was made by the accused. Was it made by him
before he was arrest? Spontaneously? Then that is not yet
covered b the custodial investigation entitling him of the
custodial rights?
4. RES GESTAE OR ADMISSION TO PRIVATE INDIVIDUAL
Or was it made res gestae to a private individual even to
a law enforcer for as long as he has not been deprived yet
of any freedom of action then that is still considered
admissible in evidence.
Or when the suspect made a confession to the media
because the media is not a law enforcer, that is admissible
in evidence.
Or to any private individual, the admission or confession
is admissible to evidence, even if he was not informed of
his Miranda rights.
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Kwin
-A. RIGHT TO REMAIN SILENT
It is the right not to be a witness against himself. It is right
against testimonial compulsion. This is equivalent to right
against self incrimination during criminal prosecution.
This is derived from the case of Miranda vs Arizona. This is
equivalent to the 5th amendment of the US. – that he may
not be compelled to discuss to any query that may form a
self incriminating evidence against him.
-PURPOSE
The purpose of having such right is so that his testimony
which may have been made during a custodial investigation
cannot be just discriminately used against him.
-BODY USED AS EVIDENCE/MERE MECHANICAL ACTS
What if it is his body that is used as evidence, like:
a. paraffin testing
-to determine the presence of gun powder
b. fluorescent powder test
-to determine if he had received the marked money
c. pregnancy test
d. DNA test
e. photographing of the accused
f. measuring of the body of the accused
TN that all these are MERE MECHANICAL ACTS. they
would form part as real evidence as part of the physical
evidence where the body is used as evidence. They are
admissible as evidence.
-SCOPE – MAY NOT BE COMPELLED TO GIVE
1. oral utterances or verbal answers to queries that may be
made by a law enforcer
2. anything that is communicative in nature
-such as asking him to reenact how the crime is
committed.
3. sample of handwriting
-because giving a sample of handwriting is not a pure
mechanical act
-but if he is confronted with a document and he
immediately denies any writing as his, that is tantamount
to a waiver of his right. The moment he makes the
denial, he may be compelled a sample of his writing to
compare it with the writings in the document subject of
the offense.
4. arrest on booking sheets
-that is self incriminating.
-you cannot be made to sign an arrest booking or an
inventory receipt without informing the accused of his
Miranda rights
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 CONSTITUTIONAL LAW
Kwin
-WAIVABLE -B. RIGHT TO BE ASSISTED WITH COUNSEL
Is the right to remain silent waivable? -COMPETENCE
YES. A. LAWYER
However if he has to make a confession, it has to be: As regards to competence, as long as he is a lawyer. If he
1. free, voluntary, done intelligently is not a lawyer and the accused did not know that fact,
2. done in the presence of his lawyer whatever confession or admission made is inadmissible in
3. reduced in writing evidence.
4. done under oath You need not be a bar topnotcher.
B. VIGILANT IN PROTECTING RIGHTS OF ACCUSED
In RA 7438, there are other requirements like: The requirement is he must be one who is vigilant in
5. done in the presence of: protecting the right of the accused.
a. a relative C. PRESENT DURING THE QUESTIONING
b. supervisor of DEPS He must be present during the conduct of the hearing,
c. mayor not after he was questioned by the law enforcer and the
d. local officials in the area lawyer just arrived to notarize the statement of the
-to witness his signing accused. That would not be a competent counsel.
-to guaranty that there was no force, violence or D. INDEPENDENT
intimidation or any means to vitiate his free will was Independent, meaning, no conflict of interest with
used in extracting admission or confession respect to the interest of the accused.
6. in writing and duly notarized So that if he has interest in the outcome of the case that
is personal to the lawyer contrary to the interest of the
accused, then he is not an independent counsel.

-PREFERABLY ON THE CHOICE OF THE ACCUSED

-NOT ABSOLUTE
What we mean there is that the choice by the accused of
his lawyer is not absolute and exclusive.
If he cannot afford the services of counsel, it is the
obligation of the law enforcer to provide a COUNSEL DE
OFFICIO to the accused.
It is not exclusively his choice to chose his own lawyer.

-WAIVABLE
Is the right to counsel waivable?
YES.
But it must be done:
1. in writing
2. in the presence of counsel

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 CONSTITUTIONAL LAW
(this portion is inserted – 27.59 mins)
-ASSISTANCE OF COUNSEL IN AN ADMINISTRATIVE
INVESTIGATION – NOT REQUIRED
Case: Ampog vs CSC 253 SCRA 293
A party in an administrative inquiry may or may not be
assisted by counsel
Case: Perez vs People
While investigations by administrative body may at times
be akin to criminal proceedings, a party in an
administrative inquiry may or may not be assisted with
counsel, irrespective of the nature of the charges and the
respondent’s capacity to represent himself and no duty
rests on such body to furnish the person investigated by
counsel.
IOW, that mandatory aspect on the assistance of counsel
is only in custodial investigation, not even in a criminal
prosecution, except for arraignment.
In administrative, it is not mandatory.
IOW if you are an investigating authority, you are not
obliged to provide him with counsel de officio in an
administrative cases.
-C. RIGHT TO BE INFORMED THAT HE HAS THESE RIGHTS
-NOT WAIVABLE
Is the right to be informed of these rights waivable?
NO.
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Kwin
SEC 13 – RIGHT TO BAIL OR RECOGNIZANCE
SECTION 13. All persons, except those charged with offenses punishable by
reclusion perpetua when evidence of guilt is strong, shall, before conviction,
be bailable by sufficient sureties, or be released on recognizance as may be
provided by law. The right to bail shall not be impaired even when the
privilege of the writ of habeas corpus is suspended. Excessive bail shall not
be required.
WHEN RIGH TTO BAIL IS AVAILABLE
Another right of the accused before a criminal prosecution is
the right to bail.
TN that right to bail is available even before the filing of
charges against the accused for as long as he is deprived of
his physical liberty illegally.
REMEDIES OF ACCUSED BEFORE FILING OF CHARGES
So if there are no charges yet filed in court, what would then
be the remedy of the accused?
Either:
1. file habeas corpus
2. post bail by petitioning the court the fixing of his baiL
Here there could be:
1. bail bond
a. cash
b. surety
c. property
2. recognizance
-CHOICE OF REMEDY IS IN ACCUSED
It is not however the choice of the judge which of kind of
bail that accused must avail. It is the choice of the accused.
BAIL BOND
Bail bond is a guaranty of the appearance or the attendance
of the accused when he is out on bail or when he is enjoying
his provisional liberty; that whenever the court requires his
attendance, he would appear in court.
It could either be posted in cash, the title of his property or
tax declaration or it could simply be a surety guarantying his
appearance in court.
RECOGNIZANCE
Recognizance OTOH is another form of guaranty to the court
that while he is out on provisional liberty, he would appear
in court. He is just being released to a responsible authority
or individual to guaranty his appearance in court whenever
it is needed in court.
Kwin transcripts Page 151
 CONSTITUTIONAL LAW
WHEN BAIL IS A MATTER OF RIGHT, DISCRETIONARY,
DENIED
The most important issue in right to bail is knowing when it is
a matter of right and when it is discretionary and when it
should be denied. It depends on the offense charged.
A. WHEN THE OFFENSE CHARGED IS TRIABLE IN MTC
-TRIAL IN MTC
When the charge against the accused is triable before
the first level courts; MTC, before conviction, it is a matter
of right.
-AFTER CONVICTION IN MTC AND APPEALED TO RTC
After conviction, and has appealed the conviction to RTC,
it is still a matter of right because the penalty does not
exceed 6 years of imprisonment.
-IF JUMPED BAIL
What if he jumped bail, would it still be a matter of right?
Yes. The court can only increase the amount of bail but
cannot deny the accused the right to bail.
B. WHEN THE OFFENSE CHRAGED IS TRIABLE IN RTC
In RTC, is it a matter of right before conviction?
It depends on the offense charged.
1. IF PENALTY IS RECLUSION PERPETUA TO DEATH
-BEFORE CONVICTION
When the penalty is less than reclusion perpetua to
death, IOW it is not a capital offense, (so reclusion
temporal downwards), before conviction, it is a matter of
right.
-AFTER CONVICTION
Once he is convicted of offenses not punishable by
reclusion perpetua to death or life imprisonment, it is
discretionary on the trial court except when the condition
is attended by an aggravating circumstance, or he has
previous record of jumping bail before.
2. IF PENALTY IS MORE THAN 6 YEARS
TN when the penalty is more than 6 years, it should be
denied. If there is an application for bail, it will be now for
court of appeals to grant it or not; discretionary of the
appellate court, but not of the trial court.
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Kwin
A. WHEN OFFENSE IS NON CAPITAL
-BEFORE CONVICTION
Where the offense is non capital, before the conviction, it is
a matter of right, no matter how many times you have
jumped bail. There can only be an increase in the risk, by
increasing the amount of bail.
-AFTER CONVICTION
-GENERAL RULE
But the moment the accused is convicted, that would be a
different story. As a GR, it would be discretionary of the trial
court, while the judgment of conviction is appealed to the
CA.
-EXCEPTION
But the moment it is decided as provided in the rules of
criminal procedure, that the accused:
a. is a recidivist,
b. a habitual delinquent,
c. has evaded his sentence,
d. has passed records of conviction,
e. has jumped bail before,
f. he had violated his provision,
that discretion of the TC is removed. IOW the TC has to
cancel the bail bond and deny the appeal for or the plead for
continue of provisional liberty under the same bail bond.
Should there be any application of bail, it will be addressed
now to the CA which has now the discretion to grant it or
not.
B. WHEN OFFENSE IS CAPITAL
-PENALTIES UNDER RPC AND SPL TO QUALIFY AS CAPITAL
If the accused is charged with a capital offense;
When we speak of capital offense, under RPC, we mean the
penalty is reclusion perpetua to death.
If it is a special law, it is considered as capital offense when
the penalty is life imprisonment.
-BEFORE CONVICTION
-DETERMINATION OF EVIDENCE OF GUILT - DISCRETIONARY
Because you have to determine whether evidence of guilt
is strong, the court has discretion to evaluate the evidence
of the prosecution whether the evidence of guilt on the part
of the accused is strong.
While the recommendation of the fiscal is to recommend
bail, the accused still has the right to petition for bail. And it
is mandatory for the court to conduct a hearing even if the
fiscal will make a manifestation that it has no objection for
the accused to apply for bail.
The point is, it is mandatory that there must be a conduct
of hearing to determine WON the evidence of guilt is strong.
So in that sense, before conviction, it is discretionary.
-WHEN EVIDENCE OF GUILT IS FOUND STRONG – DENIED
But the moment the court makes a declaration that the
evidence of guilt is strong, even before conviction, that
discretion is removed. And therefore, the right to bail should
be denied.
Kwin transcripts Page 152
 CONSTITUTIONAL LAW
WHEN BAIL SHOULD BE DENIED
1. CHARGED WITH CAPITAL OFFENSE AND EVIDENCE OF GUIT
IS STRONG
The exception therefore of the right to bail refers only to
persons who are charged with capital offenses and the
evidence of guilt is strong.
2. CONVICTED WITH CAPITAL OFFENSE IN RTC
With more reason that he is convicted, that it should be
denied.
Kwin
Case: Special Administrator vs Judge Oladia
TN of the case involving the Government of HK; potential
extradite may be granted bail on the basis of clear and
convincing evidence that the person is not a flight risk and
will abide with all the orders and processes of the
extradition court.
But generally, it is not available in extradition proceedings
as it was emphasized in the case of Government of USA vs
Borongganan.

WHEN BAIL IS DISCRETIONAY

1. CONVICTED WITH NON CAPITAL OFFENSE
It is only when he is convicted of a non capital offense
(murder to homicide or rape to acts of lasciviousness), can
the accuse now apply for bail.
DETERMINATION OF GRANT IS BASED ON ORIGINAL CHARGE
Insofar as the TC is concerned in determination WON bail
should be granted, the basis should be the original charge,
not the conviction. Because the moment the case is brought
to the appellate court, it will undergo practically a new trial.
It is possible that the decision of the lower court may be
reversed and instead maintain the original charge by CA.
So even if the accused is convicted only for a lesser offense,
not the original charge which is a capital offense, still that
right to bail should be denied. Should one apply for bail, it
should be addressed to the appellate court, now that he
case is being elevated to the appellate court and it is
discretionary to the appellate court to grant it or not.
But in the TC, it should be denied.
CONSIDERATION OF PRIVILEGE MITIGATING CIRCUMSTANCE
OF MINORITY
Case:
There is a minor who has been charged with a capital
offense; taking into consideration the privilege mitigating
circumstances of minority which is one degree lower of the
prescribed penalty; if the prescribed penalty is reclusion
perpetua, one degree lower, taking into consideration the
privilege mitigating circumstance, it will now be reclusion
temporal, then it seizes to be a capital offense as far as the
minor is concerned. Can he now avail of his right to bail?
YES.

BAIL NOT AVAILABLE FOR MILITARY MEN

TN bail is not available for military men, regardless of the
nature of the offense charged.

BAIL NOT AVAILABLE FOR ADMINISTRTIVE PROCEEDINGS

This is not also available in administrative proceedings.

BAIL AVAILABLE ONLY IN CRIMINAL PROCEEDINGS

This is only available in criminal proceedings.

BAIL GENERALLY NOT AVAILABLE FOR DEPORTATION AND

EXTRADITION PROCEEDINGS PROCEEDINGS
Therefore bail is not available for deportation proceedings,
except if there is a compelling reason, for humanitarian
reason for example, like the deportee is not acceptable in
any country including his country of origin.
For as long as there is a guaranty that he will not flee or not
violate the laws of the country where he is detained, then he
is allowed.
But the GR is it is not available as well in deportation,
including extradition proceedings, since these are not
criminal proceedings.

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 CONSTITUTIONAL LAW
SEC 14 – RIGHTS OF THE ACCUSED DURING CRIMINAL
PROSECUTION
SECTION 14.
(1) No person shall be held to answer for a criminal offense without due
process of law.
(2) In all criminal prosecutions, the accused shall be presumed innocent until
the contrary is proved, and shall enjoy the right to be heard by himself and
counsel, to be informed of the nature and cause of the accusation against
him, to have a speedy, impartial, and public trial, to meet the witnesses
face to face, and to have compulsory process to secure the attendance of
witnesses and the production of evidence in his behalf. However, after
arraignment, trial may proceed notwithstanding the absence of the
accused: Provided, that he has been duly notified and his failure to appear
is unjustifiable.
RIGHTS OF ACCUSED DURING CRIMINAL PROSECUTION
1. PRESUMPTION OF INNOCENSE
2. RIGHT TO BE INFORMED OF THE NATURE AND CAUSE OF
ACCUSATION AGAINST HIM
3. RIGHT TO BE HEARD BY HIMSELF OR COUNSEL
4. RIGHT TO A SPEEDY IMPARTIAL AND PUBLIC TRIAL
5. RIGHT TO FACE TO FACE CONFRONTATION OF THE
WITNESSES OF THE PROSECUTION
6. RIGHT TO COMPULSORY PROCESS
1. PRESUMPTION OF INNOCENSE
BURDEN OF PROOF ON THE PROSECUTION
The bottomline line here is not for the accused to prove.
Rather it is the duty of the prosecution to prove his guilt
beyond reasonable doubt.
DOUBTS RESOLVED IN FAVOR OF THE PRESUMPTION OF
INNOCENCE
In case of doubt, it has to be resolved in favor of the
accused because of the presumption of innocence.
RULE ON EQUIPOISE
Where the evidence of both is balanced, it has to be
resolved in favor of presumption of innocence. And that is
the rule on equipoise.
Kwin
2. RIGHT TO BE INFORMED OF THE NATURE AND CAUSE OF
ACCUSATION AGAINST HIM
ARRAIGNMENT IS CONDITION PRECEDENT TO THE
PROSECUTION
This is specially during the arraignment. Precisely
arraignment is a condition precedent to the prosecution of
the accused.
The accused can never be tried ex parte, or in the absence
of the accused without first the accused being arraigned. No
trial in absentia can proceed without the accused first being
arraigned.
INFORMED OF THE NATURE AND CAUSE OF ACCUSATION
When you say – should be informed of the nature and
cause of accusation against him – it means he has to be
informed of the allegations in the information.
ALLEGATIONS IN THE INFORMATION PREVAILS OVER TITLE
What is controlling is not the title of the charge but the
allegations of the information.
PROSECUTION LIMITED BY THE ALLEGATIONS
What is not alleged in the information, the accused cannot
be made to answer to any offense or any facts not alleged in
the information. Prosecution should not be allowed to
present evidence to prove a face that was not alleged in the
information because of the right of the accused to be
informed of the nature and the cause of the accusation
against him.
So if the charge is for homicide, he cannot be convicted of
murder, even if the aggravating circumstance is established
and proved beyond reasonable doubt by the prosecution.
That is just simply because he has the right to be informed
of the nature and cause of accusation against him.

PREVAILS OVER PRESUMPTION OF GUILT BY LAW

Those commissions relating to presumptions of law; can
they be reconciled?
In case of doubt, what should always prevail is the
presumption of innocence.
Presumption of guilt by the law like anti fencing law and
some anti graft laws, what would shift is only the burden of
proving his innocence. The moment he overcomes the
presumption of law, he continues to enjoy the presumption
of innocence.

PRESUMPTION OVER PRESUMPTION OF REGULARITY IN

PERFORMANCE
What about presumption of regularity in the performance
of duty?
It is always presumption of innocence that will prevail.

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 CONSTITUTIONAL LAW
3. RIGHT TO BE HEARD BY HIMSELF OR COUNSEL
A. RIGHT TO BE PRESENT AT EVERY STAGE OF TRIAL
This means he has the right to be present at every stage of
the trial of his case, from arraignment to the promulgation
of his judgment. That is his right.
1. DURING ARRAIGNMENT
The presence of the accused in the arraignment is
indispensible. That cannot be waived. The reading may be
waived, but his presence is indispensible.
2. DURING TRIAL
-GENERAL RULE
During the trial, the presence of the accused can be
waived. Provided that, it is not for identification purposes.
-EXCEPTION
So during the trial he need not be present, except when
he is needed for identification by the witnesses for the
prosecution.
-EXCEPTION TO EXCEPTION
Exception to exception is when he stipulates that
whenever his name is called, it refers to the person who is
accused in the case charged in the information. If he admits
that, then he need not be present.
3. DURING PROMULGATION OF JUDGMENT
During the promulgation of judgment, does he need to be
present?
-REQUIREMENT OF NOTICE
For as long as he was duly notified, and he does not
appear, the promulgation of judgment must proceed.
-IF ASK FOR POSTPNEMENET – GRANT
However, if he asks for postponement, that should be
granted because it is his right to be present during the
promulgation of his judgment, specially when he is charged
with a capital or a serious offense.
-LIGHT OFFENSE
If it is only light offense, he may be represented by his
counsel.
If acquitted, he need not be present.
-LESS GRAVE OR GRAVE OFFENSES
If it is less grave or grave offenses, he must be present.
If he cannot attend, or he does not attend, it doesn’t
mean that the promulgation is not valid.
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B. RIGHT OF ASSITANCE OF COUNSEL
In every stage that he is present, he must be assisted with
counsel.
1. DURING ARRAIGNMENT
The presence of counsel during arraignment is mandatory.
-COUNSEL DE OFFICIO
If he cannot afford the services of counsel, he must
inform the court the moment he learns about that. It is the
obligation of the court to provide him a counsel de officio.
If the court fails to do that, that would be a ground for
administrative sanction against the judge.
-IF SECURE OWN PRIVATE COUNSEL
But the moment he secures his private counsel or his
own counsel, and the lawyer fails to appear during the trial,
doe the court still have the obligation to provide the
accused with counsel de officio?
No. not anymore.
Although it is recognized that the right to counsel is an
absolute right of the accused, however if the accused is
already been assisted with counsel before, the court has no
more obligation to provide him with a counsel de officio. In
effect, that lawyer would no longer appear during the trial
of his case.
Case: People vs Larañaga
There is the discussion there as to the extent of
counsel during criminal prosecution especially if the
accused has his own counsel. Meaning he got his own
counsel to assist him and he is not a counsel de officio.
2. DURING PROMULGATION OF JUDGMENT
-GENERAL RULE
During the promulgation of judgment, he need not be
assisted with counsel.
-EXCEPTION
However for grave offenses, he must be assisted with
counsel so that he will understand what actions to take,
specially if it is a conviction.
3. DURING APPEAL
How about during the appeal? Is the right to counsel still
available?
Yes. In fact the justices of SC advice that the accused who
cannot afford the right to counsel before the appellate
court, because the moment the appellate court is informed
about it, it is the duty of the appellate court to provide him
a counsel de officio to assist him in his appeal.
Kwin transcripts Page 155
 CONSTITUTIONAL LAW
4. RIGHT TO A SPEEDY, IMPARTIAL AND PUBLIC TRIAL
A. SPEEDY
-NOT INCONSISTENT WITH POSTPONEMENT
Speedy is not inconsistent with postponements. For as long
as the postponement is not vexatious, capricious, and
unreasonable, it may be allowed by the court.
-EFFECT IF CAPRICIOUS
But the moment the delay is capricious on the part of the
prosecution, then it may be dismissed. And the dismissal
based on the ground of violation of the accused right to a
speedy trial; it amounts to an acquittal and can be used as
basis to claim double jeopardy.
-REMEDIES IF VIOLATED
What would be the remedy of the accused if his right is
violated?
1. MOVE FOR DISMISSAL
He should move for the dismissal of the case.
2. APPLY FOR WRIT OF HABEAS CORPUS
And if he is detained, he can always apply for a writ of
habeas corpus.
B. IMPARTIAL
We have discussed about this when we were discussing
due process. The court must observe neutrality.
C. PUBLIC
-MUST BE CONTINUOUS
This is the reason why Ampatuan case, relating to the
broadcasting of the proceedings, however it has to be
continuous. No breaking it for the duration of the day,
should there be a broad cast.
Apparently, no TV station would want that because there
will be no advertisements.
-NO COMMENTS
And there should not be any comments relating to it. Just
as is.
-REASON WHY ALLOWED IN AMPATUAN
The reason why public trial is allowed here, contrary to the
case of Estrada vs Disierto, is because they cannot
accommodate everybody in the court room which is so
small. And there is also a question of security.
And there are too many victims in the case and too many
members of the family who would want to attend however
they can’t because they are in Mindanao. They cannot afford
to come to Manila and witness the conduct of the hearing.
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-OPEN TRIAL IRRESPECTIVE OF RELATIONSHIP
It is right also of the accused to a public trial. Trial open to
the public irrespective of the people’s relationship to the
accused.
So accommodate this right of the accused as well as of the
complainant of due process, thus the allowing of the
broadcasting.
-NOT SUBJECT TO PUBLIC OPINION
However this does not mean that it is a trial that will be
subjected to public opinion.
That’s why there’s so many provisions for allowing the
broadcasting of the trial of the Ampatuan case.
-LIMITATION IN AMPATUAN CASE
The only limitation of the Ampatuan case is that the only
evidence that would be adduced during the trial would be
offensive to public decency and public morals, in which case,
the accused may ask for the exclusion of the public.
TN that this is a right of the accused.
-NOT EQUIVALENT TO PUBLICITY
This is not equivalent to publicity. Publicity is prohibited.
Publicity amount to placing the person under the scrutiny of
public opinion. And it might affect his right to due process
because of the possibility of the court being influenced by
the public or of the media.
So there was a good discussion that was recently decided in
Ampatuan. There is a good discussion with regards to
consistency of the right to consistency of the right to public
trial of the accused, whether there is violation of due
process.
Apparently SC said, there is no violation for as long as the
conditions are complied with.
Kwin transcripts Page 156
 CONSTITUTIONAL LAW
5. RIGHT TO FACE TO FACE CONFRONTATION OF THE
WITNESSES OF THE PROSECUTION
RIGHT TO CROSS EXAMINE
This is with respect to the right of the accused to cross
examination of the witnesses.
GUARANTY – ONLY OPPORTUNITY
TN that this face to face confrontation is a right that is
availed of by the accused. And what is guaranteed is only the
opportunity.
WHEN NOT AVAILABLE
1. EXPRESS OR IMPLIED WAIVER
IOW you can waive this right. Example, if he does not
appear during the trial, then he may be denied of his right
to a face to face confrontation in a trial in absentia.
2. DYING DECLARATIONS
Another exception, dying declarations cannot be
confronted by the accused. Obviously because the persons
who made the dying declarations are already dead.
3. EXAMINATION OF CHILD WITNESS
Of course, you have the examination of a child witness.
There may not be a face to face confrontation. If there is
any question by the accused to the witness, it will be
coursed through certain individuals in order to protect the
child.
We have this audio-video taking of the testimony of the
child and if there is any question that would be asked, it
would either be referred to the lawyer or the judge.
4. THROUGH AFFIDAVIT OR DEPOSITIONS
You also have that exception where there was the
witness however is no longer qualified to testify maybe
because he has become insane or maybe because he has
gone abroad already and his whereabouts are unknown, in
which case it has given an affidavit or deposition of his
testimony. That may be admitted in evidence even if the
accused has not confronted the witness on that statement
given in an affidavit or a deposition.
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6. RIGHT TO COMPULSORY PROCESS
This is for the asking of subpoena, either:
1. subpoena ad testificandum
2. subpoena duces tecum
1. SUBPOENA AD TESTIFICANDUM
SUBPOENA AD TESTIFICANDUM is when you compel a
witness to appear in court and testify.
-WITNESS – ON RIGHT AGAINST SELF INCRIMINATION
Can a witness invoke his right against self incrimination?
Can he refuse to take the witness stand?
GR: CANNOT INVOKE – MUST TAKE STAND
NO.
EXPT: 1. ASKED SELF INCRIMINATING QUESTIONS
The right to self incrimination can only be invoked
when asked incriminating questions. He can be
compelled to take the witness stand.
LIMITATION:
However TN of the limitation. When however he lives
or resides more than 15 km away from the court sits, he
may not be compelled to testify.
EXPT:
Unless his testimony is relevant to the case and there
is no other witness to testify.
2. SUBPOENA DUCES TECUM
When one is compelled to bring documents or other
evidences and testify thereon.
-WITNESS – ON RIGHT AGAINST SELF INCRIMINATION
If they are self incriminating, can he be compelled to take
the witness stand?
GR: MUST TAKE STAND
Yes.
EXPT: 1. WHEN CONFRONTED WITH EVIDENCE
He can invoke right against self incrimination only
when he is confronted with evidence.
-GRANT OF IMMUNITY
OW he may ask for the grant of immunity. There are two
kinds of immunity hat he may ask:
a. use and fruit immunity
b. transactional immunity
On the USE AND FRUIT IMMUNITY, where the witness may
be compelled to testify or bring a self incriminating
evidence, and testify thereon, provided that the compelled
testimony or compelled evidence may not be used against
him. So he may be prosecuted, however evidence cannot be
used against him.
On the TRANSACTIONAL IMMUNITY, there is practically an
absolute immunity because the compelled testimony or the
compelled evidence cannot be used against him, neither an
he be prosecuted in connection with this testimony and
evidence.
Kwin transcripts Page 157
 CONSTITUTIONAL LAW
Kwin
SEC 16 – RIGHT TO SPEEDY DISPOSITION OF CASES EXCPETIONS WHERE ACCUSED MAY TESTIFY AGAINST A CO-
SECTION 16. All persons shall have the right to a speedy disposition of their ACCUSED
cases before all judicial, quasi-judicial, or administrative bodies.
There are exceptions where accused may testify against a co-
accused, even if it would incriminate him:
SEC 17 – RIGHT OF ACCUSED AGAINST SELF INCRIMINATION
SECTION 17. No person shall be compelled to be a witness against himself. 1. if he is discharged as a state witness
The moment he is discharged as a state witness, the case
COVERAGE with respect to him is already terminated. So there is no
1. judicial danger of self incrimination anymore.
2. quasi judicial He is deemed acquitted already.
3. administrative
4. legislative inquiries 2. if the case with respect to him is already terminated
The termination is either by his acquittal or conviction.
WHO AVAILS
1. accused 3. if separate proceedings have been conducted on the same
2. witness case however arising from the same incident
In some cases, the fiscals file the case as the accused
STATUTES APPLICABLE have been arrested. Those at large, they will not include.
1. Case: Miranda vs Arizona The moment they are arrested, they would file against
2. 5th Amendment of US them after.

WHEN AVAILED ACTS PROTECTED THAT ARE SELF INCRIMINATING

1. ACCUSED IN CRIMINAL CASE 1. giving of oral testimony
If you are the accused, can you be compelled to testify 2. giving of answer or reply to querries
against the co-accused? 3. acts that are communicative in nature
NO. a. sample of hand writing
You can invoke this right the moment you are called to a b. reenactment of the commission of the crime
witness stand. c. signing an inventory receipt
d. signing of letter that is used against you
2. RESPONDENT IN ADMINISTRATIVE CASE e. signing of booking sheet without assistance of a counsel
But a respondent in an administrative proceedings, both
cannot be compelled to take the witness stand. Because MECHANICAL COMMUNICATIVE ACTS
administrative proceedings is similar to criminal TN of communicative acts that are merely mechanical and
proceedings. therefore even if it will incriminate the accused, it is
If convicted, he could lose his license or profession which is admissible in evidence.
his property. 1. paraffin testing
2. physical examination of the body
3. WITNESS 3. DNA testing
Insofar as the witness is concerned, when can he invoked? 4. extraction of hair, saliva or fluids of body of accused
Only when he is asked the self incriminating questions.
IOW he cannot refuse to take the witness stand. Case: People vs Yatar
These are admissible against the accused because there is
4. PLAINTIFF IN CIVIL CASE no use of intelligence and free will.
A plaintiff as a witness, can he be compelled to take the
witness stand? EXTEND TO ADMINISTRATIVE INVESTIGATION
YES. When his testimony s relevant to the resolution of the Case: Standard Chartered Bank vs Senate Committee
case. Does this extend to administrative investigation?
Like as hostile witness. SC said yes. Because the investigation partakes the nature
or is analogous to criminal proceedings.
SC said that the privilege has consistently been held to
extend to all proceedings sanctioned by law and all cases in
which punishment is sought to be visited upon a witness
whether a party or not.

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 CONSTITUTIONAL LAW
Kwin
NOT APPLY TO PUBLIC DOCUMENTS SEC 19 – RIGHT AGAINST CRUEL AND DEGRADING AND
Does this apply to public documents? INHUMAN PUNISHMENT
Case: Almonte vs Vasquez SECTION 19.
(1) Excessive fines shall not be imposed, nor cruel, degrading or inhuman
NO.
punishment inflicted. Neither shall death penalty be imposed, unless, for
compelling reasons involving heinous crimes, the Congress hereafter
Case: Savio provides for it. Any death penalty already imposed shall be reduced to
On public documents, even if it is incriminating, the public reclusion perpetua.
(2) The employment of physical, psychological, or degrading punishment
officer can be compelled to produce them.
against any prisoner or detainee or the use of substandard or inadequate
penal facilities under subhuman conditions shall be dealt with by law.
AIVALIABLE ONLY TO NATURAL PERSONS
Can this be invoked by the juridical persons?
NO. TN that it is right against cruel and degrading and inhuman
This is only availed of by natural persons. Because juridical punishment, it is AND not or.
persons is subject to police power of the state in compliance
with, for example: DEGRADING PUNISHMENT
1. fiscal laws A penalty is degrading if it exposes the person to public
2. sanitary laws humiliation. So it must be severe as to be degrading to the
3. taxation laws of the state dignity of the human beings. And it is applied arbitrarily to
the person.

PROHIBITED ACTS
1. use of torture or lingering suffering
2. excessive fines

DEATH PENALTY
There is no more issue to that.

Kwin transcripts Page 159

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 CONSTITUTIONAL LAW
SEC 21 – RIGHT AGAINST DOUBLE JEOPARDY
SECTION 21. No person shall be twice put in jeopardy of punishment for the
same offense. If an act is punished by a law and an ordinance, conviction or
acquittal under either shall constitute a bar to another prosecution for the
same act.
KINDS OF DOUBLE JEOPARDY
There are two kinds of double jeopardy:
1. one is twice put in jeopardy for the same offense
2. act is punished by a law and an ordinance
2. FIRST JEOPARDY IS TERMINATED
Conviction or acquittal under either shall constitute a bar to
another prosecution of the same act.
A. ONE IS TWICE PUT IN JEOPARDY FOR THE SAME OFFENSE
ELEMENTS
1. there is the first jeopardy
2. first jeopardy is terminated
3. there is the second jeopardy
1. THERE IS THE FIRST JEOPARDY
-WHEN THERE IS FIRST JEOPARDY
When is there first jeopardy?
a. complaint is valid
b. court has jurisdiction over the case
-tribunal or court is competent to hear and try the case
c. accused has been arraigned and entered into a valid plea
So if the complaint is invalid, the case is dismissed. When
the case is refiled, will there be double jeopardy?
NO.
Even if complaint is valid, however the court has no
jurisdiction over the case, case is dismissed. Then the case
is filed in the proper court, will there be double jeopardy?
NO.
When the case has been dismissed even before the
arraignment of the accused, can there be a refiling of the
case?
YES. Because the accused has not been arraigned yet.
Where the accused was arraigned and he pleaded not
guilty, however after he was allowed to present a
mitigating evidence, has proven justifying evidence and
thereby resulting to his acquittal, can the judgment be
appealed?
YES. Because there was no valid plea entered. The plea of
not guilty was deemed to withdrawn when the accused
presented a justifying evidence that led to his acquittal. So
it was as if no valid plea was entered.
Kwin
-ON PLEA BARGAINING
When there is no valid plea bargaining…
What are the requirements of a valid plea bargaining?
a. with consent of complainant
b. if the complainant does not appear, his absence is
unjustified despite notice
c. with consent of prosecutor
-HOW TERMINATED
a. acquittal
b. conviction
(c. dismissal of the case without the consent of the
accused)
A. ACQUITTAL
This is when the case is dismissed because the guilt of
the accused has bit been proven beyond reasonable doubt.
So even if the judgment of acquittal is erroneous, still
that cannot be appealed.
-EXCEPTION: MISTRIAL
Unless there is a mistrial, because there was no
impartial tribunal before the case.
For as long as the acquittal is valid, there can never be
a refilling of the case.
-Case: Perman vs SB
They got acquitted and thereafter it was appealed to
SC and allowed the retrial of the case because according
to SC, their judgment of the court was void because
considering at that time, it was the Marcos
administration, the courts are being controlled by the
president. So there was no impartial proceedings at the
time.
-NO APPEAL AFTER ACQUITTAL
Precisely because of double jeopardy, the prosecution
cannot appeal a valid judgment of acquittal.
B. CONVICTION
So when the accused is convicted, then that cannot be
refilled anymore.
-APPEAL ONLY BY ACCUSED – DEEMED WAIVED RIGHT
Can the fiscal appeal the judgment of conviction? Such as
the fiscal was not satisfied of the judgment rendered by the
court, can the prosecution appeal?
NO.
Unless the accused appeals the judgment of conviction. It
is then that the accused is considered to have waived his
right against double jeopardy.
The moment the accused appeals the judgment of
conviction, now the prosecution can appeal the judgment.

Kwin transcripts Page 160

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 CONSTITUTIONAL LAW
-Case: People vs Larranaga
The penalty was only reclusion perpetua because Judge
Ocampo then refused to impose the death penalty. They
appealed the decision and prosecution likewise appealed
the judgment because for them it should have been death.
So when they appealed the decision to CA, it was
increased to death. And you cannot anymore complain
about double jeopardy because an appeal is considered to
have been a waiver of that right to invoke double jeopardy.
C. DISMISSAL OF THE CASE WITHOUT THE CONSENT OF THE
ACCUSED (!!!)
-GR: NOT INITIATED BY THE ACCUSED
When you say, dismissal of the case without the consent
of the accused, dismissal must not be initiated by the
accused.
Because if the accused initiated the dismissal of the case
by filing a motion to dismiss, then the accused is deemed to
have waived his right to invoke double jeopardy.
-EXPT: WHEN DISMISSAL MAY BE INITIATED BY ACCUSED
BUT WILL STILL AMOUNT TO DOUBLE JEOPARDY
Except of the following instances:
1. when the motion to dismiss is grounded on the right to
speedy trial
It is the accused who files the motion to dismiss. If it is
granted, it is a dismissal without the consent of the
accused.
It is tantamount to the acquittal and there cannot be
reinstatement or refilling of the case for it will now
constitute double jeopardy.
2. when the accused files a demurer to evidence
When the accused files a demurer to evidence, this is
actually a motion to dismiss, after the prosecution has
rested its case, on the ground that the evidence of
prosecution is insufficient to prove the guilt of the
accused beyond reasonable ground and the case is
dismissed.
The dismissal is tantamount to the acquittal. And
therefore, the refilling of the case or appeal of the
judgment of dismissal is tantamount to double jeopardy.
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3. lapse of 1 or 2 years after grant of PROVISIONAL
DISMISSAL moved for by the accused
However in cases where accused moved for the
dismissal so that means it is dismissed with the consent
of the accused, usually the court would grant a
provisional dismissal of the case.
If dismissed, would it constitute double jeopardy?
NO.
EXPT if after the lapse of certain period of time, there
cannot be anymore reinstatement.
For example. Dismissal upon the initiative of the
accused. There’s a provisional dismissal because the
witnesses of the prosecution cannot be secured and the
fiscal moves for the dismissal of the case with the
consent or express conformity of the accused. What will
happen?
There will be no more double jeopardy until after 2
years where the offense charged is punishable by more
than 6 years of imprisonment or one year if the penalty is
6 years or less.
After the lapse of 2 years and 1 year, double jeopardy
will now set in. It cannot be anymore refiled.
Rule 117 of Rules of Court – a provisional dismissal of
the case becomes definite after the lapse of one year for
offenses punishable by imprisonment of not exceeding 6
years or a lapse of 2 years for offenses punishable by
imprisonment by more than 6 years; there can be no
reinstatement anymore.
Case: People vs Lacson, May 28, 2002
Kwin transcripts Page 161
 CONSTITUTIONAL LAW
3. THERE IS THE SECOND JEOPARDY
When is there now a second jeopardy?
A second jeopardy would attach after the termination of the
second jeopardy if:
1. the first offense is similar to the second offense. They are
identical.
How do you know that they are identical?
Because the evidence presented in the first offense is
the same as the evidence presented in the second
offense.
2. when the first offense is just an attempt or frustration of
the second offense or vise versa of the second offense
3. when the one offense is necessarily included in the other
offense
EXPT: RULE OF SUPERVENING EVENT
So for example in the case of serious physical injuries
that developed into the death of the victim, and thus a
homicide case is filed, that would not constitute as
double jeopardy, even if it was filed after the termination
of first jeopardy because of the rule of supervening
event.
-SHOULD HAPPEN AFTER TERMINATION OF FIRST
JEOPARDY
The supervening event should happen after the
termination of the first jeopardy.
-EXPT: NO KNOWLEDGE UNTIL TERMINATION
Unless the prosecution or the prosecutor did not know
of the development until after the termination of the
first jeopardy.
-IF HAPPEN DURING PENDENCY OF FIRST JEOPARDY
Because if it is known to the prosecutor during the
pendency of the first jeopardy, what should have been
done?
The prosecutor should have amended the information
to charge the accused of the appropriate offense.
OW his failure to do that will preclude him in the
future to file a case that developed into a more serious
event.
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A. ACT IS PUNISHED BY A LAW AND AN ORDINANCE
Conviction or acquittal by either would bar the
prosecution.
Example. Jay walking is punishable by law or ordinance. If
one is already convicted for violating the law, he cannot be
anymore be punished for violating the ordinance punishing
the same act.
TERMINATION OF FIRST JEOPARDY
-CONVICTION AND ACQUITTAL
The termination of the first jeopardy is only through
conviction or acquittal only. Not dismissal without the
consent of the accused.
-DISMISSAL DUE TO INSUFFICIENCY OF EVIDENCE AND
SPEEDY TRIAL
The this however on the failure to prosecute on the part of
the prosecution on the right to speedy trail and insufficiency
of the evidence where there is dismissal of the case, that is
tantamount to acquittal.
So the same grounds can be used by the accused to move
for the dismissal of the case. And there would be a
termination of the first jeopardy there because the grounds
cited by the accused in the motion to dismiss for violation
either of an ordinance or law are amounting to an acquittal
of the accused.
Kwin transcripts Page 162
 CONSTITUTIONAL LAW
SEC 22 – EX POST FACTO LAW
SECTION 22. No ex post facto law or bill of attainder shall be enacted.
A. EX POST FACTO LAW
It is prohibited.
It refers to criminal matters that are applied retroactively to
the disadvantage of the accused.
KINDS
1. a law that makes an act or omission a crime when
committed was not yet punishable by law
2. was punishable by law but aggravates the offense by
increasing the penalty
3. accused is deprived of certain protection relating to the
prosecution of his case
Like changing the rules of evidence relating to proving his
innocence or guilt. Like instead of proof of guilt beyond
reasonable doubt, it is reduced to just prima facie
evidence. Or like instead of presumption of innocence,
there is presumption of guilt.
APPLIED RETROACTIVELY
If it is applied retroactively, then there is an ex post facto law.
There cannot be any problem if it is applied prospectively
even if it is for the disadvantage of accused.
INCREASE OF PERIOD OF PRESCRIPTION
Increasing the period of prescription in the prosecution of an
action applied retroactively is at the disadvantage of the
accused. It cannot be allowed because it would be an ex
post facto law.
PROCEDURAL MATTER – NOT EX POST FACTO
However if it is basically a procedural matter like on
jurisdiction for instance, then that may not be considered an
ex post facto law.
ONLY REFER TO CRIMINAL MATTER
The thing that you must always remember is that the law
must refer to a criminal matter. It involves the:
1. definition of the crime
2. punishment and penalty
Anything that will be to the disadvantage to the accused and
applied retroactively, then definitely, that is an ex post facto
law, prohibited by law.
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Case: Lacson vs Executive Secretary
On the expansion of the jurisdiction of Sandigan Bayan under
RA 8249; according to SC, it is not a penal law but a
substantive law on jurisdiction, whose retroactive
application is constitutional.
Case: Villar vs People
A law can never be considered ex post facto law as long as it
operates prospectively because restriction would cover only
offenses committed after and not before its enactment.
APPLY TO COURT DOCTRINES
The prohibition of ex post facto law and law of attainder
applies to court doctrines pursuant to the maxim that
interpretation based upon the written law by a competent
court has the force of law.
USE OF UNLICENSE FIREARM AS A QIALIFYING
CIRCUMSTANCE – NO RETROACTOIVE APPLICATION
Can you apply retroactively the law making use of an
unlicensed firearm as a qualifying circumstance in murder
case?
Case: People vs Patok
Instead of having separate offenses, it will just be a
qualified circumstance; you can apply that to cases that have
been filed prior after the jurisprudence had been
established. But it cannot be applied retroactively.
Because it will now constitute an ex post facto law.
USE OF DNA – NOT AN EX POST FACTO LAW
In the use of DNA test and applied retroactively, SC said that
ha is not considered an ex post facto law.
Kwin transcripts Page 163
 CONSTITUTIONAL LAW
Kwin
B. BILL OF ATTAINDER
It is a legislative act which imposes a penalty or punishment
without judicial trial.

If it is less than death, it is BILL OF PAINS AND PENALTIES.

If it is death, it is BILL OF ATTAINDER.

CHARACTERISTICS
1. there is a law

2. law imposes a penal or criminal burden on an individual or

ascertainable members of a group
Burden must be criminal in nature. Like a fine or
imprisonment for doing an act which is punishable by law.

3. it is imposed directly the law without judicial trial

It is in the law itself. There is no need for hearing. Like
depriving for example a person of a privilege or a right in
the law itself.

Kwin transcripts Page 164

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